author: COOKS, Judge. Gremillion, J.,

text:
    Lydia DEGUEYTER v. FIRST AMERICAN TITLE COMPANY
    17-78
    Court of Appeal of Louisiana, Third Circuit.
    10/25/2017

      Jonathan R. Villien, William W. Stagg, Durio, McGoffin, Stagg & Ackermann, P.C., 220 Heymann Boulevard, Lafayette, LA 70503, (337) 233-0300, ATTORNEY FOR PLAINTIFF/APPELLANT, Lydia Degueyter
    Steven W. Copley, Phillip J. Antis, Jr., Alex B. Rothenberg, Michael J, Fussell, Jr., Gordon, Arata, Montgomery, Barnett, McCollam, Duplantis & Eagan, LLC, 201 St. Charles Ave., 40th Floor, New Orleans, LA 70170-4000, (504) 582-1111, ATTORNEY FOR DEFENDANT/APPELLEE, First American Title Insurance Company of Louisiana
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar, Judges.
   COOKS, Judge.

laOn August 1, 2014, Lydia Degueyter and her brother-in-law, Charles Faul, acquired through a. cash sale a one hundred percent undivided interest in a tract of land located on Snapper Road in New Iberia, Louisiana. The act of cash sale listed Nationwide Mortgage, LLC as' the seller, and Lydia and Charles as the buyers. The listed price was $143,325.00. The act of cash sale was signed and , notarized on August 1, 2014, although it was not filed into the Iberia Parish conveyance records until September 3,2014, at 4:09 p.m.

In connection with the cash sale, on September 3, 2014, Lydia and Charles purchased a title insurance from First American Title Insurance Company. The policy specified that “[tjitle is vested in” Lydia and Charles. According to 'the record, the policy was effective, “09/03/2014 @ 04:09 p.m. or the, date of recording, whichever is later.” Lydia and Charles were both listed as insureds under the policy.,

Charles also transferred his entire undivided, interest to Lydia by a donation inter vivos, which according to the donation was “done and passed in Lafayette Parish, Louisiana, on the 2nd day .September, 2014.” The donation was properly recorded with the Iberia Parish Clerk of Court on September 3, 2014 at 4:09 p.m. at the same exact time the act of cash sale was recorded and the First American policy went into effect,

In April of 2015, Lydia attempted to obtain financing from Farmers Merchants Bank & Trust Company (hereafter FM Bank), using the property on Snapper Road as collateral. However, her application for financing was denied by FM Bank due to the presence of multiple judgments attached to the property. Upon further investigation, Lydia discovered the recor-dation of ten judgments or tax liens in favor of third parties against Charles and his various business entities, which attached to the property upon his acquiring an interest therein.

| ¡¡Shortly after discovering the judgments on the property, Lydia contacted First American seeking coverage through the title policy. First American denied the claim. On November 13, 2015, Lydia filed suit against First American seeking coverage under the title insurance policy purchased on September 3, 2014. In conjunction with the filing of suit, Lydia filed a Motion for Summary Judgment, arguing there was no genuine issue of material fact as to coverage in her favor under the policy. Lydia argued she has never held marketable title to the property due to the encumbrances on the property and this was an insurable risk under the plain language of the policy.

First American responded and filed a Cross Motion for Summary Judgment. It argued, as a matter of law, that Lydia had no claim against First American under the title insurance policy because the policy insured Lydia as to her interest as co-owner, and the judgments against Charles did not encumber and had no effect on her ownership interest.

Both motions for summary judgment were set for hearing on August 1, 2016. Following the hearing, the trial court granted First American’s motion for summary judgment and denied Lydia’s motion for summary judgment. In its written reasons for judgment, the trial court found Charles’ “judicial mortgages and liens attached only to his one-half interest in the Snapper property because that is all he owned.” The trial court further found “Lydia has clear and unencumbered title on her undivided one-half interest in the Snapper immovable property that she originally obtained when she purchased the property with Charl[es] ... [and] title on her undivided one-half interest in the Snapper property was the interest first insured by First American.” The trial court then concluded “any judgment granting Lydia relief as requested would force [First American] to pay a claim that did not exist at the date of the policy.”

14Lydia has appealed the trial court’s judgment, asserting the following assignments of error:

1. The trial court manifestly erred in finding that [Charles’] outstanding judgments and liens which attached to the immovable property subject to the title insurance policy at issue did not cause the title to the property to be unmarketable as of the date of the policy, an insurable risk under the policy, and therefore that there was no coverage for [Lydia].
2. The trial court manifestly erred in finding that [Lydia’s] interpretation and construction of the applicable language of the title insurance policy at issue was not reasonable.

ANALYSIS

Summary judgments are reviewed de novo on appeal and the reviewing court is governed by the same criteria as the trial court in determining whether the mover is entitled to judgment as a matter of law. Schroeder v. Board of Supervisors, 591 So.2d 342 (La.1991). Summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966. Summary judgments are now favored in Louisiana and shall be construed to accomplish the ends of just, speedy, and inexpensive deterfoination of allowable actions. La.Code Civ.P. art. 966.

The mover bears the burden of proof. La.Code Civ.P. art. 966. Once the mover has made a prima facie showing that the motion shall be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. Luther v. IOM Company, LLC, 13-353 (La. 10/15/13), 130 So.3d 817. If the adverse party fails to do so, there is no genuine issue of material fact and summary judgment will be granted. Id.

The parties largely agree on the facts of this case. The issue herein is the interpretation and application of the. title insurance policy issued by First American. “Interpretation of an insurance policy usually involves a legal question | Bthat can be properly resolved in the framework of a motion for summary judgment.” Kirby v. Ashford, 15-1852, p. 5 (La.App. 1 Cir. 12/22/16), 208 So.3d 932, 936-37 (citing Bonin v. Westport Ins. Corp., 05-886 (La. 5/17/06), 930 So.2d 906).

In interpreting an insurance contract, we are mindful “that an insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code.” Sims v. Mulhearn Funeral Home, Inc., 07-54, p. 7 (La. 5/22/07), 956 So.2d 583, 588-89. Under La. Civ.Code art. 2046, “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.”

Courts must determine ■ the intent of the parties when interpreting an insurance policy. La.Civ.Code art. 2045. Insurance policies should be interpreted to effect coverage, not deny coverage. Yount v. Maisano, 627 So.2d 148 (La.1993). An exclusion from coverage should be narrowly construed. Breland v. Schilling, 550 So.2d 609 (La.1989). An insurance policy should not be interpreted unreasonably or in a strained manner in an attempt to enlarge, or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd result. Bernard v. Ellis, 11-2377 (La. 7/2/12), 111 So.3d 995; Graphia v. Schmitt, 08-613 (La. App. 5 Cir. 1/13/09), 7 So.3d 716.

Lydia maintains that the trial court manifestly erred in this case because title to the immovable property was unmarketable from the inception of the issuance of the title insurance policy by First American.- She argues -the encumbrances of the property due to the judgments against Charles rendered the property unmarketable under the policy, which is a risk insured under the language of the policy.

IfiThe First American policy listed the following under the heading “COVERED RISKS:”

1. Title being vested other than stated in Schedule A.
2. Any defect in or lien or encumbrance on the Title. This Covered Risk includes but is not limited to insurance against loss from
(a) A defect in the Title caused by
(i) forgery, fraud, undue influence, duress, incompetency, incapacity, or impersonation;
(ii) failure of any person or Entity to have authorized a transfer or conveyance;
.(iii) a document affecting Title, not ■ properly created, executed, witnessed, sealed, acknowledged, notarized, or delivered;
(iv) failure to perform those acts nec- . essary to create a document by electronic means • authorized by law;
(v) a document executed under a falsified, expired, or otherwise invalid power of attorney;
(vi) a document not properly filed, recorded, or indexed in the Public Records including failure to per- ‘ form those acts by electronic means authorized by law; or
(vii) a defective judicial or administrative proceeding.
(b) The lien of real estate taxes or assessments imposed on the Title . . by a governmental authority due or payable, but unpaid.
(c) Any encroachment, encumbrance, violation, variation, or adverse eir- • cumstance affecting the Title that - would be disclosed by an accurate and complete survey of the Land. The term “encroachment” includes encroachments of existing improvements located on the Land onto adjoining land, and encroachments onto the Land of existing improvements located oh adjoining land-.
3. Unmarketable Title.
4.. No right of .access to and from the Land.

(Emphasis added.)

Black’s Law Dictionary defines “merchantable” as “fit for sale in the usual course of trade at the usual selling prices” and further indicates marketable as the predominant term for ' “merchantable.” “Property has a merchantable title when it can be readily sold or- mortgaged in the ordinary course of business by reasonable persons familiar With the facts and questions involved.” Young v. Stevens, 252 La. 69, 209 So.2d 25, 27 (La. 1967). This court in Vallery v. Belgard, 379 So.2d 1201, 1204 (La.App. 3 Cir. 1980), cited with approval the court’s discussion of merchantable title in Young, 209 So.2d at 27:

|7Property has a • merchantable title when it can be readily sold or mortgaged in the ordinary course of business by reasonable persons familiar with- the .facts and questions involved. Roberts v. Medlock, 148 So. 474 (La.App.1933). “[Ojne should not be made to accept a title tendered as good, valid, and binding unless it is entirely legal from- every point of view.” Bodcaw Lumber v. White, 121 La. 715, 721, 46 So. 782, 784 (1908). The promisee in a contract to sell is not called upon to accept a title which may reasonably suggest litigation. Marsh v. Lorimer, 164 La. 175, 113 So. 808 (1927). And while the amount involved may be small, “it cannot be said that because of this fact the danger of litigation is not serious. No one can be forced to buy a lawsuit ...” Rodriguez v. Schroder, 77 So.2d 216, 224 (La.App.1955).

As Lydia notes, Louisiana law only requires that a plaintiff seeking to recover on the basis of unmerchantable title “must show that third persons (not parties to the action) might thereafter make claims of a substantial nature against the property, and thereby subject the vendee to serious litigation.” Langford Land Co. v. Dietzgen Corp., 352 So.2d 386, 388-389 (La.App. 4 Cir. 1977) (citing Kay v. Carter, 243 La. 1095, 150 So.2d 27, 29 (1963) and Pesson Plumbing and Heating Co., Inc. v. Hammonds, 160 So.2d 769 (La.App. 3 Cir. 1964)).

The record showed that the judicial mortgages and liens adverse to Charles preexisted his acquisition of the property in' question-, and were certainly attached to the subject property on September 3, 2014 at 4:09 p.m., which was the effective date of the. policy. It is also clear from the record that Charles’ judicial mortgages and liens attached to. the property as far back as August 1, 2014, when the cash sale was signed by the parties and notarized. While the consent of all co-owners is required for the establishment of a conventional mortgage, a judicial mortgage, such as burdened the property in question here, attaches without consent. Therefore, we find that the property was- burdened with Charles’ judicial mortgages and liens -well in advance .of the issuance of the First American policy. . .

■ It is pertinent to note that the act of cash sale signed and notarized on August 1, 2014, listed Delta Title Corporation as the preparer of the form and the returnee on the act of cash sale. We glean from the face of the policy that Delta Title was 18also the issuing agent for First American on the policy in question issued to Lydia. Therefore, it is clear that Delta Title was aware of the purchase of the property from August 1, 2014.

Our review of the record convinces us that the encumbrances on the property rendered Lydia’s title, from its inception, unmarketable. This was clearly an insurable risk under the language of the First American policy with Lydia. The policy clearly states that unmarketability and encumbrances on the title as of the date of the policy are insured risks. The record establishes as of the date of the policy, the property had been acquired by Charles and donated to Lydia, The donation was executed the day before the issuance of the policy,, and filed contemporaneously with the issuance of the policy.

First American argues it is not required to pay under its policy because Lydia has clear and unencumbered title on her undivided one-half interest in the Snapper Road property and this title on her undivided one-half interest was the interest that was first insured by First American. In support of this argument it cites the case of McSwain v. Bryant, 503 So.2d 605 (La.App. 1 Cir. 1987). In that case, a divorcing couple chose not to partition their immovable community property and- became co-owners in indivisión. The husband later executed a collateral mortgage on properties that he still co-owned with his ex-wife. The husband became delinquent on the mortgage payments and judgments attached. The MeSwain. court noted that an “owner in -indivisión can grant a mortgage over his undivided interestán property and that this interest can be seized and sold to satisfy the, mortgage.” Id. at 607. The court did note “[t]o the extent that the collateral mortgage purported to extend over [the ex-wife’s] undivided interest in the property it was ineffective. However, as to [the husband’s] interest, the mortgage was valid and enforceable.” Id.

|nWe find MeSwain distinguishable in the present case, as,it does not involve title insurance or judicial mortgages and in no way addresses the key issue of the marketability of the Snapper Road property. It merely discusses the rights of owners in indivisión, noting an owner in indivisión can grant a conventional mortgage over his or her undivided interest in the property.

Moreover, we find- First American’s argument that the encumbrances only affected Charles’ interest in the property and his title ignores the' stark reality that third parties possess outstanding rights of a “substantial nature against the property,” which effectively renders title in the property unmarketable. See Bart v. Wysocki, 558 So.2d 1326 (La.App. 4 Cir. 1990). Lydia’s title to the property in reality was unmarketable as of the time the policy went into effect. As Lydia notes, the rights of the judgment creditors against the property are substantial, irrespective of First American’s contention that the encumbrances .only affected Charles’ interest in the property and his title. We note nothing in the policy distinguishes between Lydia’s title and Charles’ title and only one premium was charged. The policy states that it “insures, as of Date of Policy... against loss or damage... sustained or incurred by the Insured by reason of: ... 3. Unmarketable Title.” The policy then defines “Unmarketable Title” as follows:

Title affected by an alleged or apparent matter that would permit a prospective purchaser or lessee of- the Title or lender on the Titlé to be released from the obligation to purchase, lease or lend if there is a contractual condition requiring the delivery of marketable title. '

Clearly, as of the date of the policy, there were multiple encumbrances on the property (Charles’ judicial mortgages and liens), which would allow for' a prospective purchaser, lessor or lender to be released from any obligation to purchase, lease'or lend, as there was not marketable- title on the property. This was evidenced when FM Bank refused to approve Lydia’s request for financing due to the encumbrances. Thus, it is clear the |inproperty could not “be readily sold or mortgaged in the ordinary course of business.” See Young, 209 So.2d at 27. We agree with Lydia that the concept of marketability as addressed in the jurisprudence is consistent with the policy’s definition of “unmarketable title,” and is thus an insurable risk under the plain terms of the First American -policy. We note the trial court’s written reasons for judgment do not address the issue of marketability of the property. As the policy clearly lists marketability of the property as a covered risk, it was error for the trial court not to address that issue.

First American argues that the “policy does not cover defects, liens, encumbrances, adverse claims, or other matters attaching or created subsequent to the Date of Policy.” We agree with Lydia that the record establishes the judicial mortgages and liens adverse to Charles preexisted his acquisition of the subject property and, thus, attached to the property prior to the date and time of the policy’s issuance. As set forth earlier, there is nothing in the record to indicate Lydia was aware of the encumbrances on the subject property prior to her application for financing with FM Bank. Thus, we find the exclusion cited by First American inapplicable as the encumbrances and liens were not created “subsequent to the Date of the Policy.”

First American also argues that coverage is excluded under the policy because the judicial mortgages which attached to the property were “created, suffered, assumed, or agreed to by the Insured Claimant.” First American offered no evidence to éstablish that Lydia “created, suffered, assumed, or agreed” to the establishment of Charles’ judicial mortgages, nor did it' offer any evidence that she agreed to their attachment to the property. Moreover, as Lydia notes, since “Insured Claimant” refers to the insured claimant who actually claims loss or damages, Charles would not be considered the | ¶/‘Insured Claimant” here as he is not claiming loss or damage. We find this exclusion is not applicable herein.

CONCLUSION

As set forth above, we find the Snapper Road property was unmarketable as of the effective date of the First American policy. As this was a covered risk under the language of the policy, we reverse the judgment of the trial court granting First American’s motion for summary judgment denying coverage under its policy. Judgment is hereby rendered granting Lydia Degueyter’s motion for summary judgment that there is coverage under the First American policy. The matter is hereby remanded to the trial court for further proceedings consistent herewith. Costs of this appeal are assessed against defendant, First American Title Insurance Company.

REVERSED, RENDERED, AND REMANDED.

Gremillion, J., concurs and assigns written reasons.

Gremillion, J.,

concurs for the following reasons:

|12I am not swayed by First American’s arguments regarding timing. It did not issue this title policy after considering when and how Charles’s various liens and judgments would attach to the subject property; it simply was unaware of their existence. It was First American’s obligation to discover the liens and judgments that affect the property to which they are insuring marketable title.

Similarly, I am not sympathetic to First American’s technical arguments that attempt to obviate the reality that this property is not marketable. A title insurance policy exists to cover the risk that the insured property owner does not have an unmarketable title, subject to the encumbrances of its former owners. Accordingly, I must agree with the majority.

That having been said, I can only concur with my colleagues for two reasons. First, the majority finds that:

‘... since “Insured Claimant” refers to the insured claimant who actually claims loss or damages, Charles would not be considered the “Insured Claimant” here as he is not claiming loss or damage. We find this exclusion is not applicable herein.’

| ^This finding creates an incentive for abuse of the donative process bétween co-buyers. An encumbered co-buyer simply donates his portion of the property to other co-buyers, allowing for a convenient insurance claim for the remaining “insured claimant.”

Secondly, and specifically to this case, had Lydia bought this property without Charles, she would be the only owner as she is today. But, because Charles stepped in as co-buyer and then stepped out almost immediately as donor, Lydia gets the same ownership of the same property at the same price, and gets to make a claim on this insurance policy. I can see no good reason for this contrivance.

The majority points out in the first line of the opinion that Charles and Lydia are part of the same family, but proceeds as though that fact was irrelevant. I cannot conclude that Lydia was unaware of the existence of not one or two, but ten, encumbrances against Charles. And, if she did not know, she could have simply asked her brother-in-law about his fitness to be a co-owner of immoveable property.

Nevertheless, it is true that First American failed to offer any proof of Lydia’s knowledge of Charles’s indebtedness. Thus, even though Lydia was better-positioned to avoid this problem, I am constrained by the policy language and the record before me. Therefore, I concur.


source: Caselaw Access Project

author: MURPHY, J.

license: Public Domain

text:
    STATE of Louisiana v. Clifton RAYE
    NO. 17-KA-136
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M.- Bou-dreaux, Gretna, Juliet L. Clark
    COUNSEL FOR DEFENDANT/APPELLANT, CLIFTON RAYE, Jane L. Beebe
    Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg
   MURPHY, J.

11 Defendant appeals his convictions and sentences .for aggravated rape of a victim under the age of 'thirteen years, sexual battery upon a juvenile under the age of thirteen years, sexual battery upon a juvenile under the age of fifteen years, and oral sexual battery upon a juvenile under the age of fifteen years. For the reasons that follow, defendant’s convictions and sentences are affirmed, and we remand for the correction of errors patent.

PROCEDURAL HISTORY

A Jefferson Parish Grand Jury returned a true bill of indictment on September 26, 2013, charging defendant, Clifton Raye, with two counts of aggravated rape of a victim under the age of thirteen years, in violation of La. R.S. 14:42 (counts one and two); one count of sexual battery upon a juvenile under the age of thirteen years, in violation of La. R.S. 14:43.1 (count three); one count of sexual battery upon a juvenile under the age of fifteen years, in violation of La. R.S. 14:43.1 (count four); and one count of oral sexual battery upon a juvenile under the age of fifteen years, in violation of La. R.S. 14:43.3 (count five). After pleading not guilty at his arraignment, defendant eventually waived his right to a jury trial and was found guilty on all counts following a bench trial on March 1, 2016. On March 10, 2016, for both count one and count two, the trial court sentenced defendant to life imprisonment at hard labor. The trial court further sentenced defendant on that date to 26 years imprisonment at hard labor on count three, and ten years imprisonment at hard labor on each of counts four and five. All sentences were ordered to run concurrently, and without benefit of probation, parole, or suspension of sentence.

[(.Defendant thereafter filed a Uniform Application For Post-Conviction Relief seeking an out of time appeal, which was granted on December 20, 2016. The instant appeal follows.

FACTS

At trial, the victim, C.R., testified that when she was eleven or twelve years old, the defendant, her biological father, forced her to begin a sexual relationship with him. More than once a week, when her mother was at work, defendant would bring C.R. into his bedroom, lock the door, and make her perform oral sex on him. C.R. described several incidents at her home where defendant penetrated her vagina with his penis, massaged her breasts, performed oral sex on her, and digitally penetrated her anus. C.R. also testified that, on one occasion, defendant attempted to restrain her with a belt while he attempted to have anal sex with her, but she broke free.

C.R. stated that she did not report the abuse because she was scared and did not want to get her father into trouble. C.R. testified that she denied that any abuse had taken place when she was first asked about it by her step-sisters, but later disclosed what had happened to her after her stepsister, S.D., told her about a similar personal experience she had previously with defendant.

S.W., C.R.’s step-sister, testified that, in late March or early April of 2013, she lived with C.R., defendant, and her mother in Jefferson Parish. She recalled that, during that time, one afternoon she arrived home and saw C.R.’s school bag, but could not find C.R. S.W. knocked on defendant’s bedroom door, which was locked. S.W. knocked on the door to hand defendant a telephone. A short time later, defendant and C.R. both exited the bedroom. S.W. testified that, in another | ^incident, she woke up in the early morning hours to use the restroom and saw defendant in C.R.’s bed. Because she suspected that something inappropriate may have been happening between defendant and C.R., S.W. called her sister S.D. to discuss her concerns. S.W. and S.D. decided to discuss the suspicions at their grandparents’ home in Lafayette during the upcoming Easter holiday.

Several days later, while in Lafayette, C.R. was asked by S.W. and S.D. about the suspected sexual abuse by defendant. C.R. initially denied any abuse, but eventually disclosed to S.W. and S.D. that defendant had performed oral sex on her and that she had performed oral sex on defendant. This information was relayed to C.R.’s mother, E.R., who confronted defendant with the allegations. Defendant denied having any sexual contact with C.R.

Tracey Jackson, an investigator for the Department of Children and Family Services (DCFS), testified that she was notified of C.R.’s complaint against defendant on April 9, 2013, and she interviewed C.R. ori April 10, 2013. During the interview, C.R. told Ms. Jackson that defendant had sexually abused her numerous times over the preceding two-year period, specifically that defendant had “fondle[d] her,” “touch[ed] her chest,” “touched her vaginal area” penetrating her with his fingers as well as his penis, penetrated her anus with his fingers, performed oral sex on her, and that she performed oral sex on defendant. Ms. Jackson relayed this information to the Jefferson Parish Sheriffs Office (JPSO) following the interview with- C.R.

Detective Ronald Raye, of the JPSO Personal Violence Unit, testified that he went to C.R.’s home and brought her to Children’s Hospital for á physical'examination. Detective Raye prepared defendant’s arrest • warrant after speaking to |4Ms. Jackson, watching C.R.’s interview at the Children’s Advocacy Center and reviewing C.R.’s hospital records.

Ann Troy testified that she is a forensic nurse practitioner who works with child victims of sexual abuse at the Audrey Hepburn Care Center in. New Orleans. Ms. Troy recounted that she interviewed C.R. on April 27, 2013, and C,R. recounted a “detailed history of sexual abuse” by defendant over a two-year period that included oral sex, vaginal and anal penetration with his penis, and forcing C.R. to masturbate him. Ms. Troy found C.R.’s statements to be consistent with the way in which children disclose sexual abuse. She further noted that the physical findings from her examination of C.R. were normal. However, Ms. Troy testified that it is not uncommon for a child with a history of vaginal penetration to present with normal physical findings. Ms. Troy further explained that delayed reporting is very common amongst children who have been sexually abused as they tend to blame themselves for what has happened to them.

The trial judge was shown the video of an interview between former forensic'interviewer, Erika Dupepe, and C.R., which took place in April of 2013 at the Children’s Advocacy Center in Jefferson Parish. During that interview, C.R. described defendant’s sexual abuse of her in detail. C.R. stated that, at age 11, defendant would go to her bedroom while she was sleeping and touch her chest and buttocks. Defendant also touched her “privates” and made her touch his “privates” while her mother was at work or asleep. Beginning at age 12, defendant váginally penetrated C.R. with his penis twice, and digitally penetrated her anus three times. C.R., described one incident when defendant forced her to perform oral sex on him. She was 12 at the time and in seventh grade. Defendant forced C.R. 'to |¿perform ’oral sex on him on more than one occasion. The last incident of sexual abuse took place 'in March of 2013, when defendant forced C.R. to masturbate him and perform oral sex on him. During that particular time, C.R.s sister knocked on the defendant’s bedroom door to give him the phone, and defendant told C.R. to hide in his bathroom.

Defendant testified at trial and denied that any sexual contact had taken place between himself and C.R. He further testified that he believed the accusations against him were made out of anger by C.R. and S.W.

LAW AND ANALYSIS

In his sole assignment of error, defendant argues the evidence was insufficient to support his convictions based only on C.R.’s testimony, during which she did not provide, dates, that the alleged sexual abuse took place. Conversely, the State asserts that the evidence is constitutionally sufficient to-support the verdicts rendered by the jury. -

In -reviewing the sufficiency .of the evidence, an appellate court must determine: that the evidence, whether direct or circumstantial, or. a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the -crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed. 2d 231 (2002). The requirement that the evidence be viewed- in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact’s rational credibility calls, evidence weighing, and inference drawing. State v. Caffrey, 08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297. The reviewing court is not permitted to decide whether it believes a witness or whether the conviction is contrary to the weight of the evidence. Id.

RUnder the Jackson standard, a review of a criminal conviction record for sufficiency of the evidence does not require the reviewing court to determine whether the evidence at the trial established guilt beyond a reasonable doubt, but whether, upon review of the whole record, any rational trier of fact , could have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La. App. 5 Cir. 4/15/08), 985 So.2d 234, 240. In making this determination, it is not the function of the appellate court to re-evaluate the credibility of witnesses or to re-weigh the evidence. 'Caffrey, supra. Rather, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04-85 (La. App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Thus, in' the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, ⅛ sufficient to support a conviction. State v. Dixon, 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-0987 (La. 1/30/09), 999 So.2d 745.

In this case, defendant was convicted of two counts of aggravated rape of a victim under the age of thirteen years (one count having involved oral sexual intercourse and the second count having involved penile-vaginal and/or penile-anal sexual intercourse), violations of La. R.S. 14:42(A)(4), one count of sexual battery upon a victim under the age of thirteen years and one count of sexual battery upon a known juvenile under fifteen years of age, violations of La. R.S. 14:43.1, and one count of oral sexual battery upon a known juvenile under fifteen years of age, |7in violation of La. R.S. 14:43.3. At the time of the offenses, La. R.S. 14:42(A)(4) defined aggravated rape as follows:

A. Aggravated rape is a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

La. R.S. 14:41 defines rape as “the act of anal, oral, or vaginal sexual, intercourse with a male or female person committed without the person’s lawful consent ... Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.” “Oral sexual intercourse” is further defined as the intentional “touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender,” or the intentional “touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim." La. R.S. 14:41(C).

Moreover, at the time of the offenses, La. R.S. 14:43,1 provided, in pertinent part:

A. Sexual battery is, the intentional touching of the anus or genitals of the victim by’the offender using any instrumentality or any part of the body of the offender, or the touching of the anus or genitals of the.offender by the victim using any instrumentality or any part of the body .of the victim, when any of the following occur:
(2) The act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and- is at least three years younger than the offender.

While, at the time of the offenses, La. R.S. 14:43.3 provided, in pertinent part:

A. Oral sexual battery is the intentional touching of the anus or genitals of the victim by the- offender using the mouth or tongue of the offender, or the touching of the anus or genitals of the offender by the |svictim using the mouth or tongue of the victim, when any of the following occur:
(l)The victim, who is not the spouse of the offender, is under the age of fifteen years and is at least three years younger than the offender.

C.R. was sixteen when she testified at trial. Her testimony, as well as the tape of the Children’s Advocacy Center interview which was shown to the trial judge, established that C.R. was between the ages of eleven and twelve at the time of counts one, two, and three, and was thirteen years old at the time of counts four and five. C.R.’s testimony and her Children’s Advocacy Center interview established that defendant' started sexually abusing C.R. when she was eleven, years old, with ■ the last time being in March of 2013, when she was -thirteen years old. C.R.’s testimony and taped Children’s Advocacy Center interview yielded extremely specific details about the types of sexual abuse perpetrated by defendant, as well as their frequency. As recounted above, this evidencé established that defendant began the sexual battery of C.R. at age 11. When C.R. was 12, defendant began forcing her to- have penile/vaginal intercourse with him and he also digitally penetrated her anus. At age 13, defendant made C.R. perform oral sex on him.

Defendant argues that the evidence used to convict him of the charged offenses is insufficient because of C.R.’s lack of specificity with regard to the dates of the alleged instances of sexual abuse, and the fact that there was no corroborating evidence, either physical or otherwise, presented at trial.

This Court has recognized that in sexual abuse cases that continue over time, exact dates often cannot be supplied. State v. Mazique, 09-845, p. 12 (La. App. 5 Cir. 4/27/10), 40 So.3d 224, 234 n.10, writ denied, 10-1198 (La. 12/17/10), 51 So.3d 19 (citing State v. Bolden, 03-0266 (La. App. 5 Cir. 7/29/03), 852 So.2d 1050). Additionally, the credibility - of a witness, including the victim, is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Gonzalez, 15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227, 1233, writ denied, 15-1771 (La. 9/23/16), 2016 La. LEXIS 1955. In sex offense cases, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even when the State does not introduce medical, scientific or physical evidence to prove the commission of the offense. State v. Hernandez, 14-863 (La. App. 5 Cir. 9/23/15), 177 So.3d 342, 351, writ denied, 15-2111 (La. 12/5/16), 210 So.3d 810. It is the role of the fact-finder to weigh the respective credibility of the witnesses; thus, the appellate court should not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State v. Alfaro, 13-39 (La. App. 5 Cir 10/30/13), 128 So.3d 515, 525, writ denied, 13-2793 (La. 5/16/14), 139 So.3d 1024.

Defendant does not argue there are any internal contradictions in C.R.’s testimony, but rather argues that she should not be believed without any supporting evidence. However, convictions of aggravated rape and other sexual abuse offenses have been upheld by this Court in the absence of medical evidence or other corroborating evidence. See State v. Hernandez, 177 So.3d at 352; State v. Roca, 03-1076 (La. App. 5 Cir. 1/13/04), 866 So.2d 867, writ denied, 04-583 (La. 7/2/04), 877 So.2d 143; Gonzalez, supra.

We ñnd C.R.’s testimony, coupled with her statements made im the CAC interview, established each element of the five offenses for which defendant was convicted. Moreover, although defendant testified that he never sexually abused C.R. and suggested that C.R. was lying, having been coerced into making the accusations against him by his step-daughters who were angry with him, the trial judge clearly, chose to believe the testimony of C.R. over defendant’s testimony. It is not this Court’s function to second-guess the credibility determinations of .the trier-of-fact. Alfaro, 13-39, 128 So.3d at 525.

This assignment is without merit.

I jqERROR patent discussion

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990). Our review reveals errors patent in this case which require correction.

Defendant’s offenses aré designated as sex offenses by LSA-R.S. 15:541 (24). A review of the record shows that the trial court did not advise defendant of his sex offender registration requirements and his notification requirements. LSA-R.S. 15:542 outlines mandatory registration requirements for those categorized as sex offenders under LSA-R.S.- 15:541. Additionally, LSA-R.S. 15:542.1 sets out notification requirements for those categorized as sex offenders. LSA-R.S. 15:543A requires the trial court to provide written notice to all sex offenders of the aforementioned registration and notification requirements, using the form contained in La. R.S. 15:543.1. A trial court’s failure to provide this notification constitutes an error patent. and warrants a remand for written notification. State v. Lampkin, 12-391 (La. App. 5 Cir. 5/16/13), 119 So.3d 158, 168, writ denied sub nom., State ex rel. Lampkin v. State, 13-2303 (La. 5/23/14), 140 So.3d 717 (citing State v. Pierce, 11-320 (La. App. 5 Cir. 12/29/11), 80 So.3d 1267, 1279-80). Accordingly, we remand this matter to the trial court, for the purpose of providing defendant with the appropriate written notice,of his sex offender notification and registration requirements, using the form contained in La. R.S. 15:543.1.

Next, the State of Louisiana Uniform Commitment Order (UCO), incorrectly reflects the dates of defendant’s offenses on counts, one, two, and three as “07/06/2010 and 7/5/2012.” (Emphasis added). However, the record reflects the offense dates, with respect to counts one, two, and three, occurred on or between the dates of July 6, 2010 and July 5, 2012. It has been the practice of this Court to remand a case for correction of the UCO in its error patent review when the UCO |uis inconsistent with the minute entry and transcript. See State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142. Accordingly, we remand this matter for correction of the UCO error regarding the range of offense dates with respect to counts one, two, and. three and further direct the Clerk of Court to transmit the original of the UCO to the officer in charge of the institution to which defendant has been sentenced and the Department of Correction’s legal department. See Id. (citing La. C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-224 (La. 9/15/06), 937 So.2d 846 (per curiam)).

' Finally, the trial court failed to advise defendant of the two-year prescriptive period for applying for Post-Conviction Relief under LSA-C.Cr.P. art. 930.8 at the time of sentencing. Accordingly, we advise defendant by way of this opinion, that no application for post-conviction relief, including applications which seek an out:of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become Anal under the provisions of La. C.Cr.P. arts, 914 or 922. State v. Do, 13-290 (La. App. 5 Cir. 11/19/13), 130 So.3d 377, 394, writ denied, 13-2907 (La. 6/20/14), 141 So.3d 285.

DECREE

Accordingly, for the reasons provided herein, defendant’s convictions and sentences are affirmed. The matter' is remanded with instruction's.

CONVICTIONS AND 'SENTENCES AFFIRMED; REMANDED

      . Count one was alleged to have involved oral sexual intercourse, and count two was alleged to have involved penile-vaginal and/or penile-anal sexual intercourse.

      . Counts one, two, and three were alleged to have been committed on or between July 6, 2010 and July 5, 2012, and counts four and five were alleged to have been committed on or between July 6, 2012 and March 26, 2013. The date of birth of the victim as alleged in the indictment and established at trial was July 6, 1999.

      . Testimony established C.R,'s birthdate as July 6, 1999, and she was 16 at the time of trial. To preserve the confidentiality of the minor victim's identity in this case, the victim, the victim’s family members, and other related witnesses will be referred to by their initials, pursuant to La. R.S. 46:1844(W).

      . S.D. testified at trial that defendant had sexually abused her.

      . C.R. testified that during this incident, defendant had forced her to perform oral sex on him.

      . JPSO Deputy Brent Baldassaro testified that he was the first officer to respond to C.R.’s home after the complaint was made. At that time, Deputy Baldassaro determined that the JPSO Personal Violence Unit needed to be notified.

      . The exact date of the interview is not clear from the record. Prior to when the tape was shown to the trial judge, Ms. Dupepe testified as to the general procedure of making a recorded interview with a victim at the Children’s Advocacy Center. At the conclusion of the video, Ms, Dupepe testified that the video was an accurate representation of the interview that she conducted with C.R.

      . It was alleged that these offenses were committed on or between July 6, 2010 and July 5, 2012.

      . It was alleged that the count of sexual battery upon a victim under the age of thirteen years occurred on or between July 6, 2010 and July 5, 2012, and that the count of sexual battery of a juvenile under fifteen years of age occurred on or between July 6, 2012 and March 26, 2013.

      .' It was alleged that this offense occurred on or between July 6, 2012 and March 26, 2013.


author: CHAISSON, J.

text:
    STATE of Louisiana v. Theodore STAMPS, III
    NO. 17-KA-213
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, THEODORE STAMPS, III, Christopher A. Aberle
    Panel composed of Judges Jude G. Gravois, Marc.E. Johnson, and Robert A. Chaisson
   CHAISSON, J.

li Defendant, Theodore Stamps, III, appeals his convictions and sentences for driving while intoxicated, fourth or subsequent offense. For the reasons that follow, we affirm defendant’s convictions and sentences and grant appellate counsel’s motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On October 7, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of driving while intoxicated, fourth or subsequent offense, in violation of La. R.S. 14:98(A) and 14:98.4(A). At the October 9, 2015 arraignment, defendant pled not guilty.

Thereafter, on March 16, 2016, defendant withdrew his, not guilty pleas and, after being advised of his rights, pled guilty as charged to both counts. In accordance with the plea agreement, the trial court sentenced defendant to twenty-five years at hard labor on each count with the first two years to be served without benefit of probation, parole, or suspension of sentence,. The trial court ordered the sentences to run concurrently with each other and also imposed a fine of $5,000.00 on defendant. Subsequently, on . February 10, 2017, the trial court granted defendant ah out-of-time appeal.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed appellate counsel requests permission to withdraw as attorney of record for defendant.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. State v. Bradford, 676 So.2d at 1110.

In this case, defendant’s appellate counsel has complied with the procedures for filing an Anders brief. He sets forth the procedural history of the case as well as the circumstances surrounding defendant’s guilty pleas and sentencing. In particular, appellate counsel points out that during the plea proceedings, defendant was adequately advised of his rights and the consequences of his guilty pleas and acknowledged that by pleading guilty, he was waiving certain rights, including the right to trial by judge or jury, the right to confront and cross-examine witnesses, and the privilege against self-incrimination. In his Anders brief, appellate counsel recognizes that the trial court sufficiently explained the nature of the charges, and defendant acknowledged his guilt for both counts. Further, appellate counsel notes that defendant’s pleas were not the result of promises, force, intimidation, or coercion, and that the trial court sentenced defendant in accordance with the terms of the plea agreement.

In his brief, defendant’s appellate counsel points out that the trial court, just prior to correctly advising defendant that the mandatory minimum sentence is ten years, inadvertently informed defendant that the maximum penalty under the statute is ten years; however, counsel then explains that the error can be deemed harmless since the record shows that defendant was apprised of the correct |asentencing range in the waiver of rights form and by the trial court at the end of the guilty plea proceedings. Defendant’s appellate counsel concludes that after a conscientious and thorough review of the trial court record, he can find no non-frivolous issues to raise on appeal and no ruling of the court that arguably supports an appeal. Therefore, he requests permission to withdraw as attorney of record for defendant.

This Court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appellate record. Our independent review supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. We particularly note that the record reveals no constitutional infirmities or irregularities in the guilty plea proceedings. The transcript and the acknowledgment and waiver of rights form show that defendant was aware of the nature of the charges against him, that he was properly advised of his Boykin rights, including the right to a jury trial, the right to confrontation, and the privilege against self-incrimination, and that he understood he was waiving these rights by pleading guilty. Further, defendant acknowledged that he had not been forced, coerced, or threatened into entering his guilty pleas.

The record also reflects that defendant was advised of and understood his sentencing exposure and the actual sentences that would be imposed upon acceptance of his guilty pleas. As noted by appellate counsel in his Anders brief, the trial judge incorrectly advised defendant during the colloquy that he faced a maximum sentence of ten years at hard labor when the statute carries a maximum sentence of thirty years. See La. R.S. 14:98.4(A). However, any confusion in that regard was cleared up when the trial court at the end of the proceedings correctly stated: “The minimum was ten years; the maximum wa's thirty on each count.” In |4addition, the waiver of rights form signed by defendant clearly sets forth that the minimum sentence is ten years and the maximum sentence is thirty years. Further, the record is clear that defendant understood that upon acceptance of his guilty pleas, he would receive a sentence of twenty-five years on each count, to run concurrently. Accordingly, any error in the trial court’s initial misstatement as to the maximum possible penalty is of no consequence and presents no issue for appeal.

With regard to defendant’s sentences, they were imposed in accordance with the plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. In addition, defendant’s sentences fall within the sentencing range prescribed by the statute. La. R.S. 14:98.4(A). Based on the foregoing, we find that defendant’s guilty pleas and the sentences imposed pursuant to the plea agreement do not present any issues for appeal.

Lastly, we have reviewed the record for errors patent and have found no errors that require corrective action. La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990).

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for. a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, we grant appellate counsel’s motion to withdraw as attorney of record for defendant, and we affirm defendant’s convictions and sentences.

CONVICTIONS AND- SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED

      . The bill of information alleged in each count that defendant had six prior driving while intoxicated convictions.

      . The' penalty provisions for the crime of operating a motor vehicle while intoxicated, ■fourth or subsequent offense, are set forth in La. R.S. 14:98.4.

      . In Bradford, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . In addition, defendant was notified of his right to file a pro se brief in this appeal. As of this. date, defendant has not filed a pro se brief.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)


text:
    Carl E. GABRIEL v. DELTA AIR LINES, INC. and Ace American Insurance Company
    NO. 17-CA-162
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      PLAINTIFF/APPELLANT, CARL E. GABRIEL, In Proper Person
    COUNSEL FOR DEFENDANT/AP-PELLEE, DELTA AIR LINES, INC. AND ACE AMERICAN INSURANCE CpMPANY, Lindsay F. Louapre
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert M. Murphy
   MURPHY, J.

hln this workers compensation case, the claimant, Carl Gabriel, appearing pro se, appeals the March 28, 2017 judgment in favor of defendants, Delta Airlines, Inc. and Ace American -Insurance Company (collectively “Delta”), which (1) sustained Delta’s exception of prematurity, (2) denied Mr. Gabriel’s rule to show cause seeking to have Delta ordered to pay the costs of medical procedures recommended by his treating physician, and (3) dismissed the matter, with prejudice. For the following reasons, we affirm the judgment of the Workers Compensation Court.

FACTS AND PROCEDURAL HISTORY

Mr. Gabriel began working for Delta as a “Ready Reserve” employee in August of 2008. Less than two months later, on October 19, 2008, while working in the course and scope of his employment with Delta, Mr. Gabriel was injured when a tow bar that he was disconnecting from an airplane fell onto' his left foot. Mr. Gabriel filed his first Disputed Claim for Compensation, Form 1008, with the Office of Workers’ Compensation (“OWC”) in November 2009 (“2009 disputed claim”), asserting that Delta failed to pay indemnity benefits and failed to timely pay and/or authorize medical benefits. Following trial of the matter, judgment was rendered on October 31, 2011, in favor of Mr. Gabriel and against Delta finding that Mr. Gabriel had proven an injury by accident during the course and scope of his employment with Delta and that he was entitled to benefits. On appeal, this Court affirmed the judgment issued by the workers compensation judge (“WCJ”) ordering Delta to pay temporary total disability payments to Mr. Gabriel from January 3, 2009 through February 15,2011, the date of Mr. Gabriel’s independent medical exam indicating he was able to return to gainful employment. This Cburt also affirmed the WCJ’s finding of a causal connection between Mr. Gabriel’s back complaints and his 2008 work-related foot injury.

Mr. Gabriel filed a second Disputed Claim for Compensation, Form 1008, with the OWC on December 30, 2013 in case number 14-49 (“2013 disputed claim”), alleging that Delta had failed to properly pay the amounts owed to him under the October 31, 2011 judgment. Mr. Gabriel sought penalties pursuant to La. R.S. 23:1201(F) and (G) for Delta’s failure to properly pay. Additionally, Mr. Gabriel alleged that a “worsening of his medical condition” caused him to be temporarily totally disabled again as of September 25, 2013.

Delta answered Mr. Gabriel’s 2013 disputed claim with a general denial of com-pensability and averred that it had paid to Mr. Gabriel all benefits owed pursuant to the prior judgment. According to Delta, Mr. Gabriel was not entitled to future indemnity benefits.

A hearing on Mr. Gabriel’s 2013 disputed claim was held on July 31, 2014, at which time the WCJ addressed solely the issue of whether Delta had properly paid Mr. Gabriel the correct amount of indemnity benefits ordered to be paid | ^pursuant to the prior October 31, 2011 judgment. On November 2, 2016, the WCJ issued a final judgment, which determined that Mr. Gabriel’s average weekly wage was $429.73, with a corresponding compensation rate of $286.50. These amounts were later affirmed by this Court on appeal. The issue regarding whether Mr. Gabriel was entitled to indemnity benefits and medical expenses, based on allegations that new medical evidence determined a “worsening of his medical condition” resulting in his being temporarily totally disabled anew, was not addressed by the WCJ in the November 2,2016 judgment.

In regards to his alleged worsening back condition, Mr. Gabriel sought treatment from two physicians in Atlanta, Georgia; namely, Dr. Pallavi Cherukupally, a phy-siatrist, and Dr. James Chappuis, an orthopedic surgeon. Drs. Cherukupally and Chappuis recommended to Mr. Gabriel that he undergo radiofrequency nerve ablation at L4-SI to alleviate his worsening condition. According to Delta, neither Mr. Gabriel nor his treating physicians ever properly requested approval for the recommended treatment through a Form 1010 submitted to Mr. Gabriel’s adjuster. Instead, Mr. Gabriel informally sought approval via faxes sent to his adjuster. Delta contends that, despite his improper submission of the request for approval, the adjuster presented Mr. Gabriel’s request to utilization review, at which time it was determined that the treatment was not medically necessary as it did not fall under the guidelines of Louisiana’s medical treatment schedule. Consequently, Delta denied Mr. Gabriel’s requests for authorization to undergo the recommended radiofrequency nerve ablation treatments. Delta argues that at no time did Mr. Gabriel’s physicians ever appeal to the OWC | .¡Administrative Medical Director seeking review of Delta’s denial of diagnostic testing and/or dispute its determination as to the medical necessity of radiofrequency nerve ablation under the medical treatment guidelines.

Mr. Gabriel filed a third Disputed Claim for Compensation, Form 1008, with the OWC on September 29, 2016 (“2016 disputed claim”), alleging that Delta had refused to authorize the radiofrequency nerve oblation treatments recommended by his treating physician(s) and, thus, should be compelled to pay the costs of the treatment (as well as any other procedure ordered by his treating physician(s)) due to Delta’s violations of La. R. S. 23:1142(E) and La. R.S. 23:1203(E). Mr. Gabriel further alleged that he was entitled to penalties, interest, and all other relief afforded by law.

Mr. Gabriel also filed a rule to show cause why Delta should be not ordered to pay the cost of the medical procedures recommended by his treating physician(s) due to its violations of La. R. S. 23:1142(E) and La. R.S. 23:1203(E). Specifically, Mr. Gabriel averred that, under La. R. S. 23:1142(E), because of Delta’s general denial of compensability set forth in its January 30, 2014 answer to his prior 2013 disputed claim, medical authorization for the nerve ablation treatment (and, arguably, any other recommended medical procedures) was no longer necessary. Additionally, Mr. Gabriel argued that Delta was in violation of La. R.S. 23:1203(E) because, upon his first request for authorization for medical care to treat his worsening condition, Delta failed to communicate information to him regarding the proper procedure for requesting an independent medical examination (“IME”) in the event a dispute arose as to his medical condition as well as the procedure for appealing a denial of medical treatment to the OWC | ^medical director as provided in La. R.S. 23:1203.1. According to Mr. Gabriel, under La. R.S. 28:1203(E), a payor who has denied medical care, service or treatment without providing documentation evidencing a reasonable and diligent effort to communicate to the claimant notice of his rights is subject to being fined. Consequently, Mr. Gabriel argues that Delta’s failure to provide him notice of his rights and the proper procedure for requesting an IME and an appeal to the medical director, in effect, eliminated Delta from the decision-making process regarding his care and medical treatment.

In response to Mr. Gabriel’s 2016 disputed claim, Delta filed an exception of prematurity and an answer with the OWC, on October 11, 2016. Delta asserted that the dispute involving whether or not it was medically necessary for Mr. Gabriel to undergo the recommended radiofrequency nerve ablation was premature on the basis that, pursuant to La. R.S. 23:1203.1, the dispute had not first been submitted to.the OWC Medical Director through the Form 1009 process prior to |BMr. Gabriel’s filing of his 2016 disputed claim. Delta posited that, pursuant to La. R.S. 23:1203,1(J), it-is only after the issuance of a decision from the OWC Medical Director that a party who disagrees with the medical director’s decision may take an appeal by filing a disputed claim. Accordingly, Delta, maintained that because Mr. Gabriel failed to exhaust his administrative remedies, -the filing of his 2016 disputed claim was premature and should, therefore, be dismissed.

Delta also filed an opposition to Mr. Gabriel’s rule to show cause denying that it had violated either La. R.S. 23:1142(E) or La. R.S. 23:1203(E). Additionally, Delta argued that the rule to show cause constituted the improper use of summary proceedings and that Mr. Gabriel’s claims should be litigated via an ordinary pro-ceedihg. ‘

Mr. Gabriel’s rule to show cause and Delta’s exception of prematurity came for hearing on November 4, 2016, at which time the WCJ took the matter under advisement. Thereafter, on December 8, 2016, the WCJ issued judgment, with written reasons, denying Mr. Gabriel’s rule to show cause finding that Delta had not violated either La. R.S. 23:1142(E) or La. R.S. 23:1203(E), and sustaining Delta’s exception of prematurity. On March 28, 2017, the OWC issued an amended judgment in favor of Delta and against Mr. Gabriel, sustaining Delta’s exception of prematurity on the ground that Mr. Gabriel had failed to exhaust his administrative remedies pursuant to La. R.S. 23:1203.1 prior to filing his 201617disputed claim concerning Delta’s refusal to authorize the recommended nerve ablation treatment. Accordingly, the WCJ dismissed the matter with prejudice. It is from the March 28, 2017 • amended judgment that Mr. Gabriel timely filed the instant pro se appeal.

ISSUE PRESENTED FOR REVIEW

The sole issue presented for our review is whether the WCJ erred in overruling Mr. Gabriel’s rule to show cause when she failed to find that Delta had been eliminated from the decision-making process regarding Mr. Gabriel’s request for medical treatment (ie., radiofrequency nerve ablation) due to Delta’s purported violations .of La. R.S. . 28:1142(E) and La. R.S. 23:1203(E),

LAW AND ANALYSIS

Standard of Review

Factual findings in a wdrkers compensation case are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error/clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact'finder’s conclusion was a reasonable one. If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently, However, when legal error interdicts the fact-finding process, in a workers’ compensation proceeding, the de novo, rather than the manifest error, | «standard of review applies. Likewise, the interpretation of a statute pertaining to workers’ compensation is a question of law and warrants a de novo review to determine if the.ruling was legally correct,

Delta’s Alleged Violation of La. R.S. 23:1142(E)

On appeal, Mr. Gabriel contends that the WCJ erred in determining that La. R.S. 23:1142(E) does not apply in this case and that Delta was not eliminated from the decision-making process regarding his medical treatment. The WCJ concluded that, although Delta’s answer to Mr. Gabriel’s 2013 disputed claim contained a general denial, in light of the evidence presented at the hearing establishing that Delta had paid “all reasonable and necessary medical treatment,” Mr. Gabriel failed to prove that Delta had actually denied the compensability of his claim. To the contrary, based on the evidence, the WCJ determined that Delta had, in fact, accepted Mr. Gabriel’s claim as it was continuing to pay for the ongoing reasonable and necessary medical expenses he incurred .throughout 2014, 2015 and 2016 to treat his allegedly worsening condition. Baséd upon our review of the record evidence in its entirety, we agree.

Generally, an employee must’ receive prior approval'from his employer before he seeks nonemergency medical attention for a work-related accident or injury costing in excess of $750.00. Once the employer has accepted compensability for a claim, the employee is bound by La. R.S. 23:1142(B), which requires the mutual consent of the employer and employee before a medical provider can provide an injured employee non-emergency medical treatment costing, in excess of $750.00. La. R.S. 23:1142(A)(1) allows a health care provider |flto incur up to $750.00 in non-emergency diagnostic testing and treatment without the mutual consent of the payor for the payment of the claimant’s medical expenses resulting from a work-related injury. An exception to La. R.S. 23:1142(B) is found in La. R.S. 23:1142(E), which states:

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.

Thus, Section E of La. R.S, 23:1142 eliminates the need for an injured employee to obtain prior approval from an employer for diagnostic testing or treatment for an injury and removes the $750.00 cap when the employer has denied that the employee’s injury is compensable under the Louisiana Workers Compensation Act.

In support of his contention that Delta violated La. R.S. 23:1142(E) and, thus, prior approval for the recommended nerve ablation treatment was not required, Mr. Gabriel relies exclusively on Delta’s answer to his 2013 disputed claim wherein Delta set forth a general denial of com-pensability that Mr. Gabriel’s alleged new/worsening back condition was a result of the prior 2008 work-related injury to his foot. At the November 4, 2016 hearing, Delta did not dispute that it had previously denied the compensability of Mr. Gabriel’s injury as originally set forth in his 2009 disputed claim. Further, Delta conceded that there may have been some disagreement between the parties concerning the calculation of Mr. Gabriel’s average weekly wage and his entitlement to indemnity benefits after February 15, 2011 (which is the date the independent medical examiner determined Mr. Gabriel was no longer temporarily totally disabled). Despite its initial general denial of compensability, Delta introduced evidence showing that since October 31, 2011, when the WCJ issued judgment finding a causal connection between Mr. Gabriel’s back complaints and the prior 2008 injury to his foot, Delta has authorized and |inpaid for Mr. Gabriel’s reasonable and necessary medical treatment related to his back complaints, including reimbursement for mileage and payment of prescriptions, through the date of the 2016 hearing.

Our review of the record reveals that not only did Mr. Gabriel fail to introduce any countervailing evidence to dispute Delta’s position, in his testimony he conceded that Delta had continuously paid for the ongoing medical expenses he incurred to treat his worsening condition even after Delta filed its answer to his 2013 disputed claim asserting a general denial of com-pensability for his claim. Accordingly, we find that although initially Delta may have entered a general denial of compensability for Mr. Gabriel’s alleged “new/worsening condition,” by thereafter paying his reasonable and necessary medical expenses through the date of the 2016 hearing, the record clearly establishes that Delta had accepted compensability for Mr. Gabriel’s claim. Therefore, under the facts presented, we find no error in the WCJ’s determination that La. R.S. 23:1142(E) does not apply and that Mr. Gabriel was not relieved from obtaining prior approval for the nerve ablation treatment in accordance with La. R.S. 23:1203.1.

We further find that the cases relied upon by Mr. Gabriel to support his contention that Delta violated La. R.S. 23:1142(E) are inapposite to the instant case. In particular, not one of the cases cited stands for the proposition advocated by Mr.-Gabriel herein - i.e., that the exception contained in La. R.S. 23:1142(E) indefinitely exempts an employee from ever having to obtain approval from his employer for testing or medical treatment if, at any time, the employer has denied the injury is compensable, even after the employer has clearly accepted the claim as compensable and continues to authorize and pay for reasonable and necessary medical treatment, as the record indicates Delta has done in this case.

Mr. Gabriel cites Stewart v. Livingston Parish Sch. Bd., for the notion that it does not matter when or how a denial of compensability by the employer occurs; if at any time an employer denies the injury is compensable, the employee need not thereafter seek approval for medical treatment. In Stewart, at issue was whether an employer was entitled to invoke the $750.00 cap provided in La. R.S. 23:1142(B) to the unauthorized non-emer-' gency medical expenses incurred by the employee prior to the employer’s having filed an answer formally denying compens-ability of the employee’s injury. In holding that the exception contained in La. R.S. 23:1142(E) applied, the court found that the employer’s refusal to respond to the employee’s request for a review of his claim was, in effect, equivalent to a denial of compensability. Unlike the. instant case, Stewart ‘did not involve a situation where the employer had subsequently accepted the claim and was paying the employee’s ongoing reasonable and necessary medical expenses.

Similar to Stewart, Mr. Gabriel relies on Youngblood v. Covenant Security SVC., LLC, wherein the court found that the employer’s refusal to provide the employee with the workers’ compensation forms she requested in an attempt to get treatment, and its lack of response to the employee’s request for a review of her claim, was tantamount to a denial of compensability invoking ■ the exception of La. R.S. 23:1142(E). Relying on its previous holding in Stewart, the First Circuit stated that La. R.S. 23:1142(E) applies regardless of when an employer denies compensability. Again, the court in Youngblood was not faced with a situation such as that presented in .the case sub judice where the employer accepted the compensability of the employee’s claim following a general denial and, thereafter, [^continued to pay the ongoing reasonable and necessary medical expenses incurred by the employee..

We further find that Mr. Gabriel erroneously relies on Barron v. First Lake Properties, Inc., to support his position that Delta violated La. R.S. 23:1142(E) in the instant case. In Barron, this Court considered whether an employer was responsible for paying more than the $750.00 cap for non-emergency medical expenses incurred by the employee during a period when the employer had denied compensability for the claim. In ruling that the exception of La. R.S. 23:1142(E) applied during the employer’s period of denial, the hearing officer found that the employer’s insurer had been contacted by the employee’s health care providers seeking approval for various medical tests and treatment and, on each occasion, had denied authorization. According to the hearing officer, the insurer’s refusal to authorize treatment constituted a denial by the employer that the claimant’s injury was a compensable claim. On appeal, this Court held that the hearing officer was correct in its determination that, under the circumstances presented, no prior approval from the employer was required for any diagnostic testing or treatment for that injury. We find Barron is distinguishable from the instant case because it did not involve a situation where the employer subsequently accepted the compensability of the claim and continuously paid the employee’s reasonable and necessary medical expenses.

Lastly, Mr. Gabriel cites Jefferson v. Greer Timber Co., in support of his contention that La. R.S. 23:1142(E) applied to eliminate the requirement that he obtain prior approval from Delta for the nerve ablation treatment related to his new/worsening condition. Like the previous cases upon which Mr. Gabriel relies, Jefferson does not support his position. In Jefferson, at issue was the employer’s | ^entitlement to the benefit of the $750.00 cap for non-emergency medical treatment. The Third Circuit ruled that the $750.00 cap did not apply to an employer who had filed an answer, containing a general denial of com-pensability of the employee’s claim. We find the Jefferson case inapposite to the case sub judice as its focus was the employer’s right to invoke the $750.00 cap when it had previously denied the com-pensability of the employee’s claim, and it did not involve the applicability of La. R.S. 23:1142(Ej when an employer subsequently accepts the compensability of the claim and pays the ongoing reasonable and necessary medical' expenses incurred by the employee.

The record establishes - and Mr. Gabriel does not contest - that, after initially denying the- compensability of Mr. Gabriel’s claim alleging a new/worsening condition, Delta continuously paid for his reasonable and necessary medical expenses, including mileage and prescriptions, through the date of the hearing in November 2016. Based on Mr. Gabriel’s failure to present any,evidence to the contrary or cite to any persuasive authority (and our research has not revealed any) that supports his contention that, under the circumstances presented, he was exempt from obtaining prior approval from Delta for diagnostic testing and/or medical treatment, including the nerye ablation treatment, we find the WCJ properly determined that La. R.S. 23:1142(E) does not apply in this case. Consequently, because La. R.S. 23:1142(E)'does not apply, Mr. Gabriel was required to seek prior approval from Delta in accordance with La. R.S. 23:1203.1 for any nonemergency medical treatment in excess of $750.00.

Delta’s Alleged Violation. of La. B.S. 23:1203(E)

We now turn to Mr. Gabriel’s contention that the WCJ erred in refusing to find that Delta violated La. R.S. 23:1203(E). Specifically, Mr. Gabriel contends that, under the statute, Delta has been eliminated from the decision-making process regarding his medical treatment based on its failure to provide him with the | requisite notice regarding his right to obtain an IME and to appeal the denial of medical treatment in the event of a dispute.

At the time of his 2008 accident, La. R.S. 23:1203(E) provided:

Upon 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 the claimant unless the payor can document a reasonable and diligent effort in communicating such information. A payor who denies medical care, services, 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..

Pursuant to Acts 2012, No. 235, § 1, effective August -1, 2012, - • La. R.S. 23:1203(E) was amended and “first payment” was substituted with “first request for authorization pursuant to La. R.S.-23:1142(B)(1).” In addition to providing the claimant with information regarding his right to request, an IME, the 2012 amendment added the requirement that the pay- or provide the claimant with notice of his right to, and the procedure for, appealing the denial of medical treatment to the OWC Medical Director as provided in La. R.S. 23:1203.1,

Mr. Gabriel argues that. La. R.S. 23:1203(E), as amended, applies to his 2013 disputed claim and that, as such, when he first requested authorization for medical care to treat his allegedly worsening condition ip September 2013, Delta was required to communicate information to him at that time regarding his rights, insofar as requesting an IME and the procedure for appealing the denial of medical treatment to the OWC Medical Director. Moreover, according to Mr. Gabriel, Delta’s obligation to communicate this information to him was triggered anew each time he sought medical treatment from a different health care provider. Consequently, because Delta failed to properly notify him of his right to appeal a | ir,denial to the OWC Medical Director when he first requested authorization for treatment with the Atlanta doctors for his worsening condition in 2013, Mr. Gabriel avers Delta was in violation of La. R.S. 23:1203(E), as amended, and was, thereafter, prevented from denying payment for the nerve ablation treatment (or payment for'any other medical expenses he incurred to treat his worsening condition).

To the contrary, Delta contends'that the pre-amended version of La. R.S. 23:1203(E) applies, and that it has fully complied with the requirements of' that statute. At the hearing on Mr. Gabriel’s rule to show cause,‘Delta submitted evidence in- the form of a January 2, 2009 letter from its insurer to Mr. Gabriel, which contained the following:

We wanted to let you know that in the event of a dispute regarding your medical condition,' you would have the right to request that the Director of the Office of Worker’s Compensation appoint a Physician to conduct an Independent Medical Examination.

The letter also provided Mr. Gabriel with the procedure for requesting an IME in the event he felt he needed one. Delta submitted evidence that Mr. Gabriel did, in fact, assert his right to an IME in September of 2010, clearly indicating that he was fully aware that there was a procedure in place that he had to follow in the event of a dispute with Delta regarding his médical treatment. Delta further avers that, even applying the amended version of La. R.S. 23:1203(E), the statute requires the payor to communicate information to the claimant “upon the first request for authorization of medical care, service, or treatment,” and, in this case, Mr. Gabriel’s first request for authorization for medical treatment occurred in 2008, to which Delta responded by sending him the January 2, 2009 letter advising him of his rights. And, while additional requests for authorization for treatment occurred after La. R.S. 23:1203(E) was amended, Delta argues that those requests were ' not the first.

11flIn finding that Delta had not violated La. R.S. 23:1203(E), and was not removed from -the decision-making process regarding Mr. Gabriel’s medical treatment, the WCJ determined that Delta’s 2009 letter to Mr. Gabriel fulfilled its obligation under the statute to advise Mr. Gabriel of his rights and, in the event he felt the need to exercise those rights, the steps he needed to take. Based on our review of the record, under the particular facts and circumstances of this case, we find no error in the WCJ’s determination that Delta had fulfilled its obligations to Mr. Gabriel under La. R.S. 23:1203(E) and that no violation had occurred.

For the foregoing reasons, we affirm the workers’ compensation judge’s findings and judgment denying Mr. Gabriel’s rule ’to show cause on the basis that the exception of La. R.S. 23:1142(E) did not apply and that Delta did not violate La. R.S. 23:1203(E).

AFFIRMED.

      . The factual and procedural history of this workers compensation claim has spanned over the course of .many years and has involved extensive litigation between the parties concerning various issues. See Gabriel v. Delta Airlines, 12-428 (La. App. 5 Cir. 01/30/13), 106 So.3d 1285, writ denied, 13-0917 (La. 05/31/13), 118 So.3d 399; Gabriel v. Delta Air Lines, Inc., 16-210 (La. App. 5 Cir. 10/19/16), 202 So.3d 1184; Gabriel v. Delta Air Lines, Inc., 16-680 (La. App. 5 Cir. 05/17/17), 222 So.3d 928. Our recitation here Is limited to the pertinent details relative to the issues presented for our review on this appeal,

      . See Gabriel v. Delta Airlines, 12-428, p. 10, 106 So.3d at 1292.

      . This Court reversed the trial court's finding of a causal connection between the work-related accident and Mr. Gabriel’s, alleged psychological injuries. See Gabriel v. Delta Airlines, 12-428, p. 13, 106 So.3d at 1293-1294. The Supreme Court denied writs. See Gabriel v. Delta Airlines, 13-917 (La. 05/31/13), 118 So.3d 399.

      . Gabriel v. Delta Air Lines, Inc., 16-680, p. 2 (La. App. 5 Cir. 05/17/17), 222 So.3d 928, 930.

      . Mr. Gabriel’s 2013 disputed claim sets forth the following "bona-fide dispute,” in pertinent part:
      Other: Refusing to pay all TTD benefits between] 1-3-2009 & 2-15-2011 (less 2 days) at [$]546 p/week (see Attachment 3) & not restarting TTD benefits as 9-25-13 to present; not paying medical bills and mileage (see Attachment 4) - see Judgment, OWCP 07, #09-0950, dated 10-31-11, as amended in 5th Cir (No. 12-CA-428), 30 days after these were final and, then, within thirty days of demand for payment under R.S. 23:1201 (F) & (G) penalties (see Attachment 5).
      There is no mention of Delta’s purported denial of authorization for radiofrequency nerve ablation treatment. The only reference to medical treatment is that Delta had "not [paid] medical bills and mileage” for Mr. Gabriel.

      . The WCJ originally issued judgment on October 28, 2015 ruling that Mr. Gabriel’s average weekly wage was $429.75. Mr. Gabriel, pro se, appealed that judgment, which we dismissed and remanded to the OWC on the basis that the October 28, 2015 judgment was not a valid appealable judgment. See Gabriel v. Delta Air Lines, 16-210 (La. App. 5 Cir. 10/19/16), 202 So.3d 1184. On remand, the WCJ issued a final judgment dated November 2, 2015.

      . See Gabriel, 16-680 at p. 17, 222 So.3d at 935.

      . La. R.S. 23:1142(E) provides that "[i]n 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.”

      . La. R.S. 23:1203(E) states that "[ujpon the first request for authorization pursuant to R.S. 23:1142(B)(1), 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 additional medical opinion regarding a medical examination in the event a dispute arises as to the condition of the employee or the employee’s capacity to work, and the procedure for appealing the denial of medical treatment to the medical director as provided in R.S. 23:1203.1. 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,” At the time of Mr. Gabriel’s Injury in 2008, and when Delta made the first payment for his medical care as a result thereof, La. R.S, 23:1203(E) imposed upon the employer only the obligation to communicate to the employee information regarding the procedure: for requesting an IME in the event of a dispute; it did not require the employer to communicate information regarding the procedure for appealing the denial of medical treatment.

      . Attached.-to its exception" of prescription, Delta included-a copy of the initial review from the Network Medical Review Company Limited (“NMR”) dated June 10, 2106, wherein the NMR set forth its determination that Mr. Gabriel’s request to undergo "radiof-requency ablation bilateral L4-S1” was not medically necessary stating the following;
      “[Louisiana] guidelines [do] not address the requested Radiofrequency Ablation ... the documentation presented does not support that going forward with the radiofrequency ablation is medically necessary. Therefore, non-certification is recommended.”

      . La. R.S, 23:1203.1 requires that all requested medical treatment fall under the Louisiana Medical Treatment Guidelines and that disputes over the" recommended treatment ■ must be resolved by the medical director before the treatment can be provided. As previ- - ously noted, Delta averred that neither Mr. • Gabriel nor his treating physician ever properly submitted a Form 1010 requesting "approval for the recommended treatment, Mr. Gabriel did not dispute this fact; ■ instead, he took the position that Delta’s general denial of the compensability of his claim in its answer to his 2013 disputed claim abrogated the necessity of him having to even submit a Form 1010 requesting" approval.

      . Mr. Gabriel filed a petition for devolutive appeal of the OWC’s December 8, 2016 judgment. On March 28, 2017, this Court determined that because the OWC judgment lacked the requisite decretal language, it was not a valid, final judgment upon, which we could reach the merits of an appeal. On that same day, the OWC issued an aménded judgment including the appropriate decretal language making it a final, appealable judgment.

      . On May 4, 2017, Delta filed a motion to . dismiss Mr. Gabriel's appeal as moot on the basis that the underlying dispute as to authorization for the recommended radiofrequency nerve ablation treatment had been resolved. Specifically, Delta averred that since Mr. Gabriel's filing of the instant petition for appeal, Delta had authorized and agreed to pay for the requested medical treatment for his lumbar and lower back pain. Mr. Gabriel opposed-Delta's motion to dismiss, and on May 17, 2017, this Court issued an order denying Deb ta's motion.

      . Lafayette Bone & Joint Clinic (Morris) v. La. United Business SIF, 15-2137, p. 27 (La. 6/29/16), 194 So.3d 1112, 1123.

      . Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La. 1993); Hookfin v. Advantage Nursing Services, Inc., 03-340, p. 3 (La. App. 5 Cir. 10/15/03), 860 So.2d 57, 59.

      . Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 9 (La. 3/4/98), 708 So.2d 375, 381.

      . Dorion v. Gulf States Asphalt Co., L.P., 08-670, pp. 7-8 (La. App. 5 Cir. 4/28/09), 14 So.3d 44, 48.

      . Delta presented a Medial Payment Printout reflecting medical expenses it had paid on behalf of Mr. Gabriel, which indicated that Delta had paid for ongoing medical treatment rendered to Mr. Gabriel from August 2014 through March of 2016.

      . La. R.S. 23:1142(B).

      . 07-1881 (La. App. 1 Cir. 5/2/08), 991 So.2d 469.

      . Stewart, 07-1881 at p. 8, 991 So.2d at 474.

      . Id., 07-1881 at p. 9, 991 So.2d at 475.

      . 11-2382 (La. App. 1 Cir. 12/21/12), 112 So.3d 233.

      . Youngblood, 11-2382 at p. 19, 112 So.3d at 241.

      . 93-902 (La. App. 5 Cir. 1994), 636 So.2d 970.

      . Barron, 93-902 at pp. 7-10, 636 So.2d at 972-973.

      . 618 So.2d 21 (La. App. 3rd Cir. 1993).