author: PATRICIA RIVET MURRAY, Judge.

text:
    Cathy L. REINHARDT v. CITY OF NEW ORLEANS (NOPD).
    No. 2009-CA-1116.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 2010.

      Joseph G. Albe, New Orleans, LA, for Plaintiff/Appellee.

      Wayne J. Fontana, Christopher M. McNabb, Fontana & Seehnan, LLP, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR.
   PATRICIA RIVET MURRAY, Judge.

I r This is a workers’ compensation case. The employer, the New Orleans Police Department (“NOPD”), appeals two judgments of the workers’ compensation judge (“WCJ”) in favor of the claimant, Cathy Reinhardt. The judgments denied the NOPD’s exception of prescription as to Ms. Reinhardt’s indemnity benefits claim and awarded her temporary total disability benefits (“TTD”). For the reasons that follow, we affirm the WCJ’s findings that the indemnity benefits claim is not prescribed and that Ms. Reinhardt sustained a work-related disability. However, due to the lack of evidence regarding Ms. Reinhardt’s inability to work at any job, we reverse the WCJ’s award of TTD and remand for a determination of her entitlement to supplemental earnings benefits (“SEB”).

FACTUAL AND PROCEDURAL BACKGROUND

On September 3, 2004, Ms. Reinhardt, while in the course and scope of her employment as a NOPD homicide detective, was in a motor vehicle accident. The driver of the other vehicle ran a stop sign and struck the driver’s side of the vehicle |aMs. Reinhardt was driving. On the day of the accident, Ms. Reinhardt was treated at the emergency room and released. Thereafter, Ms. Reinhardt treated with her choice of physicians. She continued to work full time until January 2006. From January 2006 to January 2007, she submitted documentation — NOPD Form 50 (Physician’s Examination Certifications)(“Form 50”)— to the Administrative Duties Division (“ADD”) indicating her inability to work. To avoid being terminated by the NOPD, Ms. Reinhardt resigned in January 2007.

Near the end of the tort prescriptive period, Ms. Reinhardt filed suit against the third party tortfeasor. The NOPD intervened in the tort suit to assert a workers’ compensation lien for the medical expenses it had paid on Ms. Reinhardt’s behalf. As a result of the settlement of the tort suit the NOPD was paid $9,314.13.

On March 27, 2006, Ms. Reinhardt, who was still employed by the NOPD, filed a Disputed Claim for Compensation (LDOL-WC-1008) seeking to recover wage benefits, authorization of recommended medical treatment, and attorney’s fees and penalties. The NOPD answered asserting as an affirmative defense, among other things, that Ms. Reinhardt was not disabled as a result of a work-related accident.

This matter was tried over a period of three separate days. Before trial, the parties stipulated to the following:

|31. That on September 3, 2004, Ms. Reinhardt sustained a work-related accident within the course and scope of her employment with NOPD.
2. That Ms. Reinhardt has been employed with the NOPD since June 2, 1991.
3. Ms. Reinhardt’s NOPD annual salary was $45,873.61 for 2004, which was in addition to her State Supplemental Pay and Private Detail Pay.
4. Any TTD benefits which are due would be at the maximum compensation rate at the time of the injury which is $438.00.

On September 23, 2008, the first day of trial, Ms. Reinhardt presented her case, which included calling two witnesses: Wade Schindler, Ph. D.; and herself. Dr. Schindler, who was qualified as an expert in police officer qualifications, testified that given the limitations Ms. Reinhardt’s doctors have imposed on her she was unable to perform the job of a police officer.

Ms. Reinhardt, who was forty-three years old at the time of trial, testified that although before the September 2004 accident she had some injuries, she had no significant problems from October 2001 until September 2004. During that three year period before the accident, she worked full time as a homicide detective. Ms. Reinhardt testified that in the September 2004 accident she was bounced around, hit the steering wheel, cracked her head on the window, and was jerked out of her seat and then jerked back. Although Ms. Reinhardt did not lose consciousness, she immediately developed severe headaches as well as pain in her arm, hand, neck, hip, and lower back. On the day of the accident she was treated in the emergency room and released with instructions to see either the NOPD doctor, Dr. McSwain, or her own doctor.

| .¡Four days after the accident, Ms. Reinhardt began treatment with Dr. Stewart Altman. Dr. Altman recommended she see a neurologist, but the NOPD failed to authorize her to see a neurologist until during the trial. Dr. Altman also recommended that she have an MRI, which was done in 2004. According to Ms. Reinhardt, the 2004 MRI revealed that she had problems with the discs in her neck and lower back that were causing her problems.

From September 2004 through March 2005, Dr. Altman continued to treat Ms. Reinhardt. During this time, he continually imposed light duty restrictions on her, which she defined to mean not lifting heavy things, not encountering any physical fights that would injure her further, and not using her weapon. During this time, she described the problems she had performing her job as a police officer to be sitting and standing and her inability to do physical things like handcuffing, using her weapon, writing, or using the computer. During this time, she estimated that she missed about two months of work for which she was not paid any workers’ compensation disability benefits; rather, the NOPD used her acquired sick days and annual leave time to pay her. Although she returned to work, she testified that she had difficulty performing her job and that she only worked what was called “injured-on-duty.”

Beginning in January 2005, Ms. Reinhardt began treating with Dr. Jase, a chronic pain specialist. Ms. Reinhardt testified that for about five months in 2005 she had no motion at all in her right arm and leg, and she thought she was having a stroke. For this reason, she was hospitalized in the summer of 2005; her discharge [.^diagnosis was transient paresthesia. Also in the summer of 2005, Dr. Jase referred her to Dr. Charles April for a deeper type of injection that he did not perform. Due to Hurricane Katrina, which stuck the area on August 29, 2005, Ms. Reinhardt did not see Dr. April until February 2006. She testified that she worked, albeit in pain, through Hurricane Katrina and its aftermath.

During 2006, Ms. Reinhardt was seen by Dr. April and received two injections. Because the injections did not provide significant relief, Dr. Jase also referred her to a neurosurgeon, Dr. Jajeeb Thomas, for possible surgical intervention. Ms. Reinhardt was seen by Dr. Thomas, and he, in turn, referred her to a hand specialist, Dr. Eric George, for evaluation of her severe carpal tunnel syndrome.

At trial, Ms. Reinhardt testified that she had not worked since January 16, 2006, with the exception that from January to July 2007 (for a seven month period) she owned and operated a coffee shop in Hammond. She testified that her coffee shop was destroyed by a fire (apparently arson) and that she did not have the money to reopen it. She also testified that she had difficulties performing the | (¡physical tasks of running the business. As noted elsewhere, in January 2007, Ms. Reinhardt resigned from the NOPD to avoid being terminated.

On the second day of trial, November 19, 2008, the NOPD put on its case, which included calling five witnesses: (i) NOPD Lieutenant Grafton Salvant, (ii) Kimberly Brown, (iii) Kevin Pierre, (iv) Dr. Jase, and (v) Dr. Brobson Lutz.

Lieutenant Salvant testified that for a brief period spanning 2006 to 2007 he was assigned as sergeant of the ADD. In the winter of 2006, Lieutenant Salvant reviewed Ms. Reinhardt’s file and noticed that it lacked the required documentation to justify her continued absences — completed Form 50s. At that time she had been absent for several months. He contacted Ms. Reinhardt and advised her that she needed to provide up-to-date documentation.

On January 19, 2007, Ms. Reinhardt provided Lieutenant Salvant with twenty-five Form 50s with attachments detailing her absence. The Form 50s were dated from January 15, 2006, through January 25, 2007. The Form 50s were from Dr. Jase, and the forms indicated that Ms. Reinhardt was unable to return to work as a police officer in any capacity at the time. The dates on which the forms were signed corresponded roughly to the dates on which Ms. Reinhardt had office visits with Dr. Jase. Ms. Reinhardt also submitted a letter from Dr. Jase to the NOPD dated January 12, 2007, which stated “[a]t this time, Ms. Reinhardt is unable to return to work in any capacity regarding her ability to use her firearm and to defend herself.”

|70n January 23, 2007, Lieutenant Sal-vant responded by sending Ms. Reinhardt an interoffice memorandum informing her that most of the Form 50s were incomplete and requesting that she provide completed forms as soon as possible. He further informed her that given her doctor’s assessment that she will never return to full duty, the NOPD would be invoking Rule 9 of the City Civil Service Commission, which provides, among other things, that the appointing authority may take corrective action, including removal from service, when a civil service employee is unable to perform the duties of her position in a satisfactory fashion.

On January 26, 2007, Ms. Reinhardt responded by letter explaining her position regarding the Form 50s that she provided and indicating that she had opted to voluntarily resign. She also noted that she had filed an application for disability retirement. Although Ms. Reinhardt maintained that she timely had furnished each of the Form 50s to Lieutenant Salvant’s predecessor in office and that they were simply missing from the file, Lieutenant Salvant testified that he did not believe her. He stated that it was strange that one employee’s form for a whole year were missing, but every one else’s forms were up-to-date.

Kimberly Brown, a NOPD police technician 3 — payroll, testified that she received Ms. Reinhardt’s termination package in January 2007. According to Ms. Brown, the information on the termination form, including the assertion that the treason for termination was “sustained an injury while working on the job,” was provided by Ms. Reinhardt.

Kevin Pierre, a Cannon Cochran Management Services (“CCMSI”) claims supervisor, testified that he had worked on Ms. Reinhardt’s claim since it was first filed in September 2004. On the date of the accident, the NOPD prepared an initial report of injury in which the accident was reported as a “medical only” workers’ compensation claim. Ms. Reinhardt’s claim therefore was originally categorized as a “medical only claim” with a possible third party subrogation claim. Mr. Pierce testified that Ms. Reinhardt filed a timely tort suit against the third party tortfeasor in which the NOPD intervened and recovered medical expenses it had paid on her behalf.

By letter dated September 10, 2004, CCMSI notified Ms. Reinhardt that it was handling her compensation claim and that if she was claiming any lost time from work for this injury she would have to provide it with documentation of medical certification of injury before any disability benefits would be considered. Mr. Pierce acknowledged that the NOPD had never disputed Dr. Jase’s treatment of Ms. Reinhardt and that it was still paying her medical expenses.

Dr. Jase testified that his areas of practice are general medicine, physical medicine, and rehabilitation; he is not board certified in any particular specialty. From January 2005 to February 2008, Dr. Jase provided primarily pain management care to Ms. Reinhardt. Dr. Jase acknowledged at trial that at the |9request of the Louisiana State Board of Medical Examiners he voluntarily restricted his medical license and that as of 2008 he could not provide pain management care. In February 2008, Dr. Jase issued a notification to his patients that he was no longer able to provide “Chronic Pain Management” services. Since then, Dr. Jase has not treated Ms. Reinhardt.

Dr. Brobson Lutz, who was qualified as an expert in internal medicine and infectious disease, testified that on the NOPD’s behalf he performed a second medical opinion (“SMO”) evaluation of Ms. Reinhardt. The SMO was performed on November 7, 2008, which was during the pendency of the trial. Based on his evaluation, Dr. Lutz issued an original report, which the WCJ allowed into evidence, and a supplemental report, which the WCJ excluded from evidence.

As noted, the trial began on September 23, 2008, and concluded on November 19, 2008. On January 27, 2009, the WCJ heard and denied the NOPD’s exception of prescription, which was raised during the trial based on Ms. Reinhardt’s testimony. Thereafter, post trial briefs were filed, and the matter taken under advisement. On March 3, 2009, the WCJ rendered judgment finding as follows:

• Ms. Reinhardt carried her burden of proving that she suffered a work-related accident within the course and scope of employment with the NOPD on September 3, 2004;
• The NOPD is ordered to pay Ms. Reinhardt TTD at the applicable maximum workers’ compensation rate of $438.00 per week for any |]0and all unpaid absences due to this workers’ compensation injury from September 3, 2004 through December 31, 2005. These dates were either paid as sick leave or stated (on defendant’s reports) that workers’ compensation benefits were paid but were not actually paid by the third party administrator for defendant; and
• The NOPD is order to pay Ms. Reinhardt the applicable maximum TTD rate of $438.00 per week from January 1, 2006 and continuing until modified by the court.
• The NOPD is assessed all costs including the expert fee of Dr. Schindler of $1,400. The NOPD is assessed all unpaid medical bills and expenses to date of trial plus legal interest from the date received, and legal interest on all unpaid workers’ compensation indemnity benefits from the date originally due until paid.

The WCJ further found that the NOPD did reasonably controvert this claim and thus denied Ms. Reinhardt’s request for penalties and attorney’s fees.

DISCUSSION

In a workers’ compensation case, the appropriate standard of review applied to the WCJ’s factual findings is the manifest error-clearly wrong standard. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. “When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings [ (sic) ]; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Errors of law are reviewed de novo. Balseiro v. Castaneda-Zuniga, 04-2038, p. 6 (La.App. 4 Cir. 8/17/05), 916 So.2d 1149, 1153.

On appeal, the NOPD contends the WCJ erred in three respects: (i) finding Ms. Reinhardt’s claim for disability indemnity benefits had not prescribed, (ii) | n excluding Dr. Lutz’s supplemental report and his testimony stemming from that report, and (iii) finding that Ms. Reinhardt suffered from a disability as a direct result of the September 3, 2004, work-related accident and that disability benefits (TTD) are due. We separately address each of these contentions.

(i) prescription

The NOPD contends that the WCJ erred in denying its exception of prescription to Ms. Reinhardt’s claim for indemnity benefits. La. R.S. 23:1209(A) sets forth the prescriptive period governing workers’ compensation claims. “[T]he statute provides that claims for disability benefits are barred unless filed (1) within one year from the date of the accident; (2) one or three years from the date of the last payment of compensation benefits, depending on the type of benefits paid; and (3) one year from the time the injury develops if not immediately manifest, but, in any event, no more than two years after the accident.” Muhammad v. New Orleans Police Dep’t, 02-0306, p. 5 (La.App. 4 Cir. 6/26/02), 822 So.2d 183, 186 (citing Peeler v. Georgia-Pacific Corp., 96-1423, p. 3 (La.App. 1 Cir. 6/20/97), 696 So.2d 1064, 1066). The jurisprudence has liberally construed the time limits for institution of a claim for benefits. Scott v. Walmart Stores, Inc., 03-0104, p. 6 (La.App. 4 Cir. 7/2/03), 851 So.2d 1210, 1213-14 (citing 14 H. Alston Johnson, Louisiana Civil Law Treatise: Workers’ Compensation Law and Practice § 384 (3d ed.1994)). Prescription statutes, including La. R.S. 23:1209(A), are construed in |12favor of maintaining rather than barring actions. Taylor v. Liberty Mut. Ins. Co., 579 So.2d 443, 446 (La.1991).

The NOPD contends that Ms. Reinhardt’s own trial testimony revealed that she was aware and believed that she suffered an injury that significantly limited her ability to work as a police officer as early as September 2004 and that she did not receive any workers’ compensation indemnity benefits. The NOPD thus contends that the applicable prescriptive period is one year from the date of the accident. Given that Ms. Reinhardt delayed filing a disputed claim until March 27, 2006, the NOPD contends that her claim for indemnity benefits was prescribed on its face. Ms. Reinhardt counters that the WCJ correctly denied the exception because she had a developing injury, she was paid unearned wages in lieu of workers’ compensation, and the NOPD lulled her into a false sense of security. Although not raised by the parties, we find prescription of Ms. Reinhardt’s workers’ compensation claim was interrupted by her timely filing of suit against the third party tortfeasor.

The jurisprudence has recognized that a claimant’s timely filing suit against a third-party tortfeasor interrupts prescription as to the claimant’s workers’ compensation claim against his employer arising out of that same accident. See Gatlin v. Cox Communications, Inc., 02-32 (La.App. 5 Cir. 4/30/02), 818 So.2d 801, 802; Bradley v. Mike Rougee Corp., 95-967, p. 3 (La.App. 5 Cir. 6/25/96), 676 So.2d 1111, 1113 (holding that the rule in Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1390 (La.1993), operated to interrupt | ^prescription of the workers’ compensation claim when the tort suit was filed before that claim); Wilson v. City of Shreveport, 28,846 (La.App. 2 Cir. 11/1/96), 682 So.2d 882; see also Muhammad, supra (citing Wilson, supra, but finding it factually inapposite). This line of jurisprudence is an extension of the Louisiana Supreme Court’s holding in Williams, supra, that a timely filed suit against the employer for workers’ compensation interrupts prescription as to the subsequent claim against the third party tortfeasor for damages arising out of the same accident. Williams, 611 So.2d at 1390. The rationale of the Williams case is that an employer’s obligation to pay workers’ compensation benefits and a third party tortfeasor’s liability for damages arising out of the same accident is solidary. This line of jurisprudence recognizes that the reverse situation is likewise true — a timely filed suit against the third party tortfeasor for damages interrupts prescription as to the subsequent claim against the employer for workers’ compensation benefits.

In this case, a copy of the tort suit Ms. Reinhardt filed is not contained in the record on appeal. Nonetheless, the parties acknowledge that Ms. Reinhardt timely filed suit against the third party tort-feasor. As noted elsewhere, the NOPD intervened in that suit. Given the parties’ acknowledgment of the timely filing of the tort claim, this court “takes judicial cognizance of the filing of that lawsuit and deems it timely filed.” Wilson, 28,846 at p. 8, 682 So.2d at 886 (citing La. C.E. art. 201(B)(2) and La. C.E. art. 202). We also note that the CCMSI’s claim notes, which are in the record, reflect that the prescription period for the tort suit fell directly after Hurricane Katrina (prescription ran on September 3, 2006, and |HHurricane Katrina struck on August 29, 2005) and that Ms. Reinhardt’s tort suit was not filed until the end of the prescriptive period.

Ms. Reinhardt’s timely filed tort suit interrupted prescription on her claim for workers’ compensation indemnity benefits. When prescription is interrupted, the time that has elapsed is not counted, and “[prescription commences to run anew from the last day of interruption.” La. C.C. art. 3466. “An interruption of prescription resulting from the filing of a suit ... within the prescriptive period continues as long as the suit is pending.” La. C.C. art. 3463. The result of Ms. Reinhardt’s timely filing of a tort suit at some point after Hurricane Katrina' — after August 29, 2005 — was that she acquired at least another year from the date she filed that suit to file her claim against the NOPD for workers’ compensation indemnity benefits. Her claim filed on March 27, 2006, was therefore timely. For this reason, we find the WCJ did not err in denying the NOPD’s prescription exception.

(ii) evidentiary issue

The NOPD next contends that the WCJ erred in excluding Dr. Lutz’s supplemental report dated November 18, 2008, and his testimony related to that report. In his supplemental report, Dr. Lutz stated that he had received on that date Ms. Reinhardt’s urine toxicology results from the testing that was done on the date he conducted the SMO, November 7, 2009. The laboratory report results indicated that “her urine tested positive for benzo-diazepines, oxazepam, opiates, codeine, and morphine.” The report further indicated that “[t]hese results conflict with what 11fishe told me on the day the urine was collected and provide additional support to the diagnosis of malingering.” (The conflict was that Ms. Reinhardt told Dr. Lutz that she had not taken any prescription pain medication for a few months before the SMO exam.) The WCJ, apparently accepting Ms. Reinhardt’s argument that there was not a proper certification for the supplemental report, ruled that it was inadmissible. The WCJ nonetheless allowed the NOPD to proffer both the supplemental report and Dr. Lutz’s related testimony.

The NOPD argues that the WCJ erred in excluding the report. The NOPD points out that in workers’ compensation cases the WCJ has the freedom to admit documents that do not necessarily comport with the strict interpretation of the rules of evidence. See La. R.S. 23:1317(A)(stat-ing that the WCJ shall not be bound by “the technical rules of evidence.”) The NOPD contends that the WCJ erred in refusing to entertain a re-urging of this issue after the report and related testimony were proffered. The NOPD contends the WCJ should have reconsidered whether the report was otherwise reliable given (i) Dr. Lutz’s experience with the particular lab and its procedures, (ii) his routine use of these types of urine tests in treating patients, and (iii) his use of that lab for thirty years without any prior problems. The NOPD notes that the purpose of Dr. Lutz’s toxicology screen was not to present evidence of intoxication or to establish an affirmative defense; rather, the screen was part of his routine practice in formulating a diagnosis of a patient. The NOPD thus argues that the WCJ should have allowed the report and the related | ir,testimony on the issue into evidence. The NOPD also argues that the exclusion of the evidence prejudiced its ability to counter Dr. Jase’s testimony.

Ms. Reinhardt counters that the WCJ did not err in excluding the supplemental report given that she timely objected to the report being introduced and given that she was prejudiced by her inability to question either the reliability or the substance of the lab findings included in the uncertified lab report. She also points out that the requirements of La. R.S. 23:1122 for introducing medical reports were not met.

“The decision to admit evidence into the record rests within the sound discretion of the workers’ compensation judge and will not be reversed in the absence of manifest error.” Central Lumber Co. v. Duhon, 03-620, pp. 2-3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593 (citing Jones v. Trendsetter Prod. Co., 97-299, p. 11 (La.App. 3 Cir. 2/25/98), 707 So.2d 1341, 1346). Based on the circumstances in this case, we cannot conclude that the WCJ erred in disallowing the proffered evidence. Regardless, the NOPD acknowledged that Dr. Lutz’s supplemental report did not alter the substance or the opinion expressed in his initial report dated November 17, 2008, which was allowed into evidence.

h i(iii) causation and disability indemnity benefits

The NOPD contends that the WCJ’s finding that Ms. Reinhardt suffered from a disability as a direct result of the September 3, 2004 work-related accident is not supported by the record. The NOPD also contends that Ms. Reinhardt failed to establish her entitlement to disability indemnity benefits under any standard. Subsumed in that argument is a contention that the WCJ’s award of TTD was improper. For the reasons that follow, we find that the record supports the WCJ’s finding of a work-related disability, but does not support the award of TTD.

An injured employee is entitled to compensation benefits if she suffers a personal injury by an accident arising out of and in the course of employment. LSA-R.S. 23:1031. Pursuant to the statutory scheme, the injured employee bears the initial burden of establishing the causal connection between the disability and the employment accident by a preponderance of the evidence. Quinones v. U.S. Fidelity & Guar. Co., 93-1648 (La.1/14/94), 630 So.2d 1303, 1306-07. The chain of causation required by the statutory scheme is that the employment causes the accident, the accident causes the injury, and the injury causes the disability. Guillory v. U.S. Fidelity & Guar. Ins. Co., 420 So.2d 119, 122 (La.1982). An employee’s preexisting condition does not disqualify his claim if the workrelated injury either aggravated or combined with the infirmity to produce the disability for which compensation is claimed. Doucet v. Baker Hughes Prod. Tools, 93-3087, p. 3 (La.3/11/94), 635 So.2d 166, 167. “Although procedural rules are construed liberally in favor of woi'kmen’s compensation claimants, the burden of 11sproof, by a preponderance of the evidence, is not relaxed.” Prim v. City of Shreveport, 297 So.2d 421, 422 (La.1974). Disability can be proven by medical and lay testimony. Isaac v. Lathan, 01-2639, p. 13 (La.App. 1 Cir. 11/8/02), 836 So.2d 191, 199. “[T]he testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability.” Prim, supra.

In this case, the existence of a work-related accident was stipulated. The parties, however, dispute whether that accident caused Ms. Reinhardt any injuries that have resulted in a disability. Ms. Reinhardt testified that immediately after the accident she developed severe headaches as well as pain in her arm, hand, neck, hip, and lower back. On the day of the accident she was treated in the emergency room and was diagnosed with lumbar strain, trapezius strain, and cephalgia. (Cephalgia means a headache or a pain in the head. P.N. Collin, Dictionary of Medicine (3rd ed.2000).) She was released with instructions to see either the NOPD doctor, Dr. McSwain, or her own doctor.

Four days after the accident, Ms. Reinhardt began treatment with Dr. Altman, whose treatment of her is outlined below:

• September 7, 2004 — initial visit: Dr. Altman’s diagnosis was contusion of the head, cervical spine strain, trapezius muscle sprain, lumbar spine sprain, and paresthesia of the upper and lower extremities. He noted that “[a]ll symptoms and findings are causally related to the [September 4, 2004] accident.” He placed her on full disability for a week.
• September 21, 2004 — second visit: Dr. Altman noted that her headaches, left hip, and lower back felt worse; her neck and shoulders felt better. He instructed her to have an MRI of the left hip, shoulder, | ^cervical, and lumbar spines and to consult a neurologist for her headaches.
• October 8, 2004 — third visit: Dr. Altman noted that her headaches, right hand, and lower back felt the same, but her neck felt worse. He indicated that she was to remain on light duty for the next three weeks.
• October 22, 2004 — fourth visit: He noted that her lower back felt worse; her right hand had pins and needles.
• November 5, 2004 — fifth visit: He noted that her headaches were better; her neck, lower back, right wrist/hand were the same and that “[s]he had carpal tunnel syndrome in the past but her grip got weaker after this accident.” He further noted that she is predominately right handed. Because at this time no MRI had been scheduled, Dr. Altman again instructed her to have an MRI of the lumbar spine. He noted that she was working on light duty, and he indicated that she was to remain on light duty for the next four weeks.
• December 6, 2004 — sixth visit: He noted that her headaches were the same and that she had pain in her neck radiating into her right arm and hand with complaints of pins and needles with swelling of the right hand; she also had pain radiating to the right thigh with complaints of numbness into the right lower extremity. Also on December 6, 2004, Ms. Reinhardt had a lumbar MRI that showed an apparent herniated L5-S1 intervertebral disc and eccentric bulging of the L4-5 intervertebral disc toward the right side.
• January 7, 2005 — seventh visit: He noted that her neck felt the same, but she still was experiencing pins and needles in the right arm and hand but less than before. The lower back also felt the same and pain radiated to the right thigh and leg, and the right lower extremity buckles. She also noted that work was painful. Dr. Altman placed her on light duty restrictions for three weeks.
• January 26, 2005 — -eight visit: She reported that her neck and lower back felt the same to worse secondary to going to the shooting range and that her pain continued to radiate to the entire right lower extremity and the right knee buckles. She also reported that she was working a lot and that it was painful. She was placed on light duty restrictions.
• February 17, 2005 — ninth visit: She indicated that the left side of her neck felt the same and that pain radiated to her right arm and hand with complaints of pins and needles. Her upper and lower back felt the same. She indicated that mild pain still radiated to the right thigh with pins, needles, and numbness into the entire right lower extremity. She experienced weakness in the right lower extremity and Instated that it buckles after standing for long period of time. She was working forty hours a week and indicated it was painful.
• March 11, 2005 — -last visit: Her neck, shoulders, and lower back felt the same. She was instructed to consult a chronic pain specialist.

As suggested by Dr. Altman, Ms. Reinhardt next sought treatment from a chronic pain specialist, Dr. Jase. As noted earlier in this opinion, Dr. Jase was Ms. Reinhardt’s treating physician for several years until he was prohibited from practicing pain management in early 2008. From 2005 to early 2008, Dr. Jase saw Ms. Reinhardt about once every two weeks, save for the period after Hurricane Katrina. He acknowledged completing the Form 50s spanning January 2006 to January 2007 as well as the letter to the NOPD dated January 12, 2007, which stated:

Ms. Reinhardt has been and continues to be under my care for the treatment of cervicalgia and lumbago. She has undergone multiple treatment options including trigger point injections, home exercises programs and anti-inflammatory medications. She was referred to Dr. Charles April and underwent two cervical and lumbar epidural steroid injections, all of which gave her minimal or unsatisfactory relief. Ms. Reinhardt continues to complain of neck and lower back pain, numbness and tingling in her right arm and leg, which have worsened. As a result she is unable to write, shoot, stand and/or walk for long periods of time. For these reasons, I also referred Ms. Reinhardt to Dr. Najeeb Thomas, a neurosurgeon, for evaluation of possible surgical intervention. At this time, Ms. Reinhardt is unable to return to work in any capacity regarding her ability to use her firearm and to defend herself.

On September 8, 2006, Dr. Jase wrote a letter to the CCMSI claims adjuster stating that the injections Dr. April performed had given Ms. Reinhardt minimal or unsatisfactory relief and that he was now referring her to Dr. Thomas, a neurosurgeon, for evaluation of possible surgical intervention.

|2iOn December 7, 2006, Dr. Thomas first saw Ms. Reinhardt and ordered a new MRI of the lumbar and cervical spine and an EMG of the right upper extremity. In his report, Dr. Thomas summarized the history he was given by Ms. Reinhardt starting with the September 2004 motor vehicle accident as follows:

• She immediately had neck and low back pain, but within a week began to get some right-sided pain in her arm and numbness in her right hand. She has had difficulty writing. She also has some numbness in the left hand, but much worse in the right. She states that someone diagnosed this as Saturday night palsy, but she still had persistent problems.
• She has tried multiple therapies and has seen Dr. April’s group and had what appears to be facet injections and medial branch block injections. She did have an interlaminar epidural steroid injection at L4-5. She apparently had facet injections at C4-5 and C5-6 on the right. None of these have given her long-term relief.
• She did work after the accident off and on intermittently and did work during Hurricane Katrina, but she has been disabled for 11 months.

On May 8, 2007, Dr. Thomas saw Ms. Reinhardt again. On this visit, he reviewed with Ms. Reinhardt the results of her EMG and MRI. The cervical spine MRI revealed no problems, but the MRI of the lumbar spine showed a possible lateral disk at L4. (The radiologist’s report regarding the 2007 MRI indicated that the results were comparable with the 2004 MRI results.) The EMG showed severe right carpal tunnel syndrome. Dr. Thomas proposed the following treatment plan: (i) referral to Dr. George for evaluation for severe right carpal tunnel syndrome, (ii) referral to Dr. Borchardt for an L4 trans-foraminal epidural steroid injection on the right, and (iii) follow up with Dr. Thomas after seeing Dr. George and having |22the epidural injection. As of the time of trial, the NOPD had not authorized her treatment with Dr. George.

Although in his letter to the NOPD dated January 2007 Dr. Jase did not mention or relate Ms. Reinhardt’s disability to return to work as a police officer to the September 2004 accident, Dr. Jase in his subsequent deposition taken in August 2008 testified that the accident played some part in Ms. Reinhardt’s overall disability. Dr. Jase further testified that he agreed that the September 2004 accident, at least in part, contributed to or aggravated her preexisting conditions and made her symptomatic in the conditions that he treated her for — the neck, back, and arms. He explained that on her initial visit to him Ms. Reinhardt gave a history of a fifteen-year complaint of neck and back pain. Since the September 2004 accident occurred the year before he saw her, Dr. Jase opined that it was a reasonable assumption that the accident played some part in her progression. He further opined that her current condition was the result of a “constellation of the events.”

At trial, Dr. Jase testified that he did not make any findings that disagreed with Dr. Altman’s initial assessment or opinion that Ms. Reinhardt’s neck and back pain were related to the 2004 motor vehicle accident. Dr. Jase further testified that he found nothing to disagree with Dr. Altman’s opinion in his November 2004 report that Ms. Reinhardt’s preexisting carpal tunnel syndrome and related symptoms were aggravated by the September 2004 accident. Dr. Jase still further | ¡^testified that Ms. Reinhardt was not a malingerer, symptom magnifier, or drug seeker.

On November 7, 2008, during the trial of this matter, Dr. Lutz saw Ms. Reinhardt and performed a SMO evaluation on the NOPD’s behalf. As part of his evaluation, Dr. Lutz had Ms. Reinhardt categorize her present complaints that she believed precluded her from being able to work in decreasing order of severity; her response was as follows: (1) lower back pain greater on the right than on the back rated as an 8 out of 10 which never goes away; (2) lower neck pain which is always present; (8) right sided arm and leg tingling; (4) inability to use right hand to hold a gun and has to use her left hand to hold up her right hand; and (5) depression and fatigue. Dr. Lutz noted that Ms. Reinhardt listed her symptoms on the history form she completed on the day of the evaluation as “[n]eck, lower back, R/leg and arm numbness, pain, loss of motion overall, no long term sitting, standing, walking without pain and numbness.”

In his report dated November 17, 2008, Dr. Lutz opined that Ms. Reinhardt’s current conditions — her neck, back, and leg complaints — cannot be related to her September 2004 motor vehicle accident. He explained that all of her current complaints are subjective and unsupported by any objective findings. He noted that she did have an EMG confirmed severe carpal tunnel syndrome and that “[t]he compression of her right median nerve explains her right hand complaints and is the reason she cannot comfortably handle a hand gun.” Dr. Lutz further noted that “[t]his nerve compression syndrome would not have been caused by her MVA.” I^Dr. Lutz opined that Ms. Reinhardt’s pain complaints were grossly disproportionate to her objective findings and clinical course. He further opined that her objective findings and clinical course are consistent with malingering as her neck, back, and leg objective findings do not meet any criteria for diagnosis of any condition that can be attributed to her September 2004 accident.

Dr. Lutz explained his reasons underlying his opinions as follows. First, he noted there were multiple inconsistencies between Ms. Reinhardt’s history as she related to him and her medical records. He cited as an example her telling him she had no prior history of carpal tunnel syndrome despite the December 2006 diagnosis, based on an EMG, of severe carpal tunnel syndrome and the May 2007 referral to Dr. George for this problem.

Second, he noted that when Ms. Reinhardt presented to the emergency department on the date of the accident she did not have clinical findings compatible with an acute lumbar disc problem or with any hand or wrist injury. At the time of her emergency room visit, she was already taking Vicodin and Soma, medications which are prescribed for musculoskeletal complaints.

Third, the December 2006 EMG study showed that her right upper extremity and hand clumsiness were due to medial nerve compression at the wrists, which would not be related to a motor vehicle accident trauma. (He noted that the medial nerve runs from the forearm passing through the carpal tunnel in the wrist into the hand.)

[asFourth, he noted that despite receiving extensive treatments and injections over the four year period since the accident, Ms. Reinhardt showed no significant symptom improvement. Dr. Lutz attributed this type of non-response to treatment as a sign of symptom exaggeration.

Fifth, Dr. Lutz characterized the cervical and lumbar findings reported in the 2004 and 2007 MRIs as having doubtful clinical significance and as more likely than not preceding her September 2004 accident. He noted that she had no objective diagnosis temporally related to the September 2004 accident of any spine problem that would have caused her symptoms.

Finally, he stated that Ms. Reinhardt’s clinical course included “obvious symptom magnification, exaggerated pain behaviors, and less than maximum efforts.” He further stated that malingering was strongly suggested by several factors.

Summarizing his findings, Dr. Lutz opined that although Ms. Reinhardt has symptoms related to right carpal tunnel syndrome, he could find no objective manifestations of any symptoms or impairment related to the September 2004 accident and that her subjective complaints were suspect and unreliable. Dr. Lutz also testified that the medication and course of treatment that Dr. Jase prescribed for Ms. Reinhardt were inappropriate.

Given the conflicting medical testimony provided by Dr. Jase and Dr. Lutz coupled with Ms. Reinhardt’s testimony and her extensive medical treatment, we cannot conclude the WCJ was manifestly erroneous in finding Ms. Reinhardt 1 ¡^established by a preponderance of the evidence a work-related disability. This, however, does not end the inquiry as to whether Ms. Reinhardt met her burden of establishing entitlement to workers’ compensation disability benefits. “While a showing that there is no work related disability is enough to deny benefits, the converse is not true.... It is not enough just to prove the inability to continue in the pre-injury job.” Rapp v. City of Neiu Orleans, 95-1638, p. 5 (La.App. 4 Cir. 9/18/96), 681 So.2d 433, 438. A claimant seeking any type of disability indemnity benefits — TTD or SEB — must meet an additional burden of proof.

A claimant seeking TTD must not only establish a work related disability, but also establish by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(l)(c). A claimant who can perform light duty work is not entitled to TTD benefits. Holden v. International Paper Co., 31,104, p. 2 (La.App. 2 Cir. 10/28/98), 720 So.2d 442, 444. “Thus, the question is not whether the workers’ compensation claimant could perform the previous work but, rather, whether the claimant could perform some sort of work.” Picquet v. Teco Bulk Terminal, 08-793, p. 11 (La.App. 5 Cir. 4/28/09), 13 So.3d 208, 216.

The medical evidence does not clearly and convincingly show that Ms. Reinhardt could not return to some type of work. No evidence was introduced to support the finding that Ms. Reinhardt was incapable of performing some type of work. Her own doctors indicated that she could perform at least light duty. Dr. Altman, with the exception of the week immediately after the accident, Inconsistently indicated that she could work light duty. Dr. Jase testified that although she could not return to work as a police officer, he believed she could perform some other type of work. We thus find that Ms. Reinhardt failed to meet her burden of proof that she was unable to engage in any employment. Accordingly, we find the WCJ’s award of TTDs was improper.

When an employee’s work-related injury does not result in total disability, she may still be entitled to an award of SEB, which is a subset of TTD. Bolton v. Grant Parish School Bd., 98-1430, p. 5 (La.3/2/99), 730 So.2d 883, 886. The purpose of SEB is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 8 (La.7/1/97), 696 So.2d 551, 556; Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993).

To qualify for SEB, a claimant is required to prove by a preponderance of evidence that a work-related injury resulted in the inability to earn 90% or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Once the claimant makes this showing, the burden shifts to the employer, who must prove by a preponderance of evidence that the claimant is physically able to perform a certain job and that the job was offered to the claimant or was available in the claimant’s or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i). Once the employer succeeds in sustaining its burden, the burden |2Sshifts back to the claimant to show by clear and convincing evidence, unaided by any presumption of disability, that the claimant is unable to perform the employment offered solely as a consequence of substantial pain. La. R.S. 23:1221(3)(c)(ii).

The jurisprudence has recognized the need for an appellate court to remand for a determination of whether the claimant is entitled to SEB when “the record contains no testimony concerning the appellee’s educational level, previous training, or work experience.” Schmitt v. City of New Orleans, 632 So.2d 367, 374 (La.App. 4th Cir.1993); Rapp, supra; Picquet, supra. Such is the case here. Although Ms. Reinhardt’s post trial brief requests a finding of either TTD or SEB, the focus at trial was on the issue of whether Ms. Reinhardt had a work-related disability. The issue of SEB was not addressed. Because of the lack of evidence in the record on the SEB issue, we find it necessary to remand so that both parties can present evidence on the issue. On remand, Ms. Reinhardt can put on evidence of her inability to earn 90% of her pre-accident wages. The NOPD then will be entitled to offer evidence of available jobs. Ms. Reinhardt will then be allowed to offer rebuttal evidence of working in pain.

DECREE

For the foregoing reasons, the WCJ’s judgment dated January 30, 2009, denying the NOPD’s exception of prescription is affirmed. The WCJ’s judgment dated March 3, 2009, is reversed insofar as it awards Ms. Reinhardt TTD and interest thereon; in all other respects, the judgment is affirmed. This matter is |2!)remanded for further proceedings consistent with this opinion, including a hearing to determine Ms. Reinhardt’s entitlement to SEB.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . The ADD manages officers who are out sick or assigned to limited duty positions. The ADD is not limited to work-related illnesses or accidenls. The ADD monitors and regulates the injured or sick employees through their healing process. If the employees do not heal, the ADD makes recommendations to the superintendent. Officers are allowed to work in limited duty assignments until they are able to come back to full duty and be transferred back lo their original assignments. The ADD is distinct from the department that handles WC claims.

      . As discussed elsewhere in this opinion, the parties dispute whether Ms. Reinhardt turned these Form 50s into the ADD individually on a timely basis or in bulk — 25 at once — at the end of the period, January 2007.

      . As of the time of trial, the NOPD had not authorized her treatment with Dr. George On the first day of trial, the parties entered a stipulation as to the following:
      1) That the Claimant would put on her case on 9/23/08; and the City would put on its case on 11/19/08.
      2) The Claimant agrees to keep her SMO (Second Medical Opinion) appointment with Dr. Lutz on 10/8/08 at 2 p.m. [Ms. Reinhardt failed to keep the original appointment. For that reason, she was seen at a later date, November 7, 2008.]
      3) The City will authorize Claimant's evaluation by a neurologist of her choice. The City will also authorize an evaluation of the Claimant’s wrists by Dr. Eric George if Dr. Najeeb Thomas decides it is still warranted.
      4) The City will request Dr. Lutz to fax a report to counsel for both parties on or before Monday, October 13, 2008.
      5) The City will undertake its best efforts to pay Dr. Jase's bill within the next ten business days with the understanding that Dr. Jase will provide documentation to facilitate said payment. The Claimant will waive penalties and attorney fees if Dr. Jase's bill is paid within that time frame.

      . Based on Ms. Reinhardt’s testimony regarding her immediate awareness that she was injured in the accident, the NOPD filed an exception of prescription at trial, which was later submitted in writing, heard, and denied.

      . Lieutenant Salvant testified that the options that were available to Ms. Reinhardt included voluntarily resigning, applying for a disability pension, applying for training through workers' compensation to do another type of job, or do nothing in which case the NOPD would have options available.

      . CCMSI is the NOPD’s third party administrator. CCMSI is responsible for processing and paying the NOPD's workers’ compensation claims.

      . A copy of the Consent Order Dr. Jase signed with the Louisiana State Board of Medical Examiners was introduced into evidence.

      . For ease of discussion, the medical evidence pertaining to Ms. Reinhardt's disability, including Dr. Lutz's and Dr. Jase's testimony regarding that issue, is summarized elsewhere in this opinion.

      . Although Ms. Reinhardt failed to answer the NOPD's appeal, she argues that it is appropriate for this court to address the issue of penalties and attorney's fees and to award them to her. We disagree. The issue of penalties and attorney’s fees is not before us on appeal.

      . La. R.S. 23:1122 provides:
      The employer shall cause the examination provided for in the preceding Section to be made immediately after knowledge or notice of the accident, and to serve a copy of the report of such examination made by the employer’s physician upon the employee within six days after the employer’s receipt of the report of such examination. If the examination is not made and the report is not furnished by the employer within that time, the employee shall furnish a report of the examination made by his own physician to the employer, for which the employee shall be entitled to receive from the employer the actual cost of the examination and the actual cost of the report. The physician’s invoice or receipt shall be prima fa-cie proof of the cost. Upon the receipt by either party of such a report from the other party, the party receiving it, if he disputes the report or any statement therein, shall notify the other of that fact within six days, otherwise the report shall be prima facie evidence of the facts therein stated in subsequent proceedings under this Chapter.

      . An employer can discharge its burden by establishing (1) the existence of a suitable job within claimant’s physical capabilities, (2) the amount of wages an employee with claimant's experience and training can expect to earn in that job, and (3) an actual position available for that particular job at the time the claimant received notification of the job’s existence. Seal v. Gaylord Container Corp., 97-0688, p. 9 (La.12/2/97), 704 So.2d 1161, 1167; Noto v. City of New Orleans Fire Dept., 04-0472, p. 6 (La.App. 4 Cir. 9/1/04), 883 So.2d 439, 444.


source: Caselaw Access Project

author: Judge ROLAND L. BELSOME.

license: Public Domain

text:
    Kenneth DeMARCO v. DAVID BRIGGS ENTERPRISES, INC.
    No. 2009-CA-0615.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 2010.

      John H. Denenea, Jr., Shearman-Dene-nea, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Paul Michael Elvir, Jr., Law Offices of Robert E. Birtel, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME).
   Judge ROLAND L. BELSOME.

| ^Plaintiff-Appellant Kenneth DeMarco appeals the grant of summary judgment from the Office of Workers’ Compensation (“OWC”) in favor of Defendants-Appel-lees, David Briggs Enterprises, Inc. and Liberty Mutual Insurance Company, which precluded Mr. DeMarco’s right to future compensation for his injuries. Because we find that the OWC exceeded its jurisdictional authority, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On February 10, 2005, Appellant Kenneth DeMarco was struck by a mule that had broken free from its carriage in the French Quarter. Appellant was employed by Defendant-Appellee David Briggs Enterprises, Inc. at the time of the accident. Appellant sustained back injuries as a result of the accident, for which he sought treatment and received indemnity and medical benefits from David Briggs Enterprises, Inc. and its workers’ compensation earner, Liberty Mutual Insurance Company.

A third party claim was filed by Appellant against the carriage company that owned the mule, Gay 90’s Carriages, Inc., and its insurer, First Financial Insurance Company. Liberty Mutual intervened in the case and also filed its own lawsuit 12against First Financial. Before the case went to trial, First Financial submitted an Offer of Judgment to both Appellant and intervenor Liberty Mutual. The Offer of Judgment was accepted by Appellant only; Liberty Mutual did not respond to the offer or further pursue the matter.

Instead, Liberty Mutual subsequently attempted to obtain a judgment from the district court declaring the case as settled. In response, Appellant filed a Motion for Entry of Judgment, asserting that the matter was resolved as a judgment. On February 15, 2008, the district court granted Appellant’s Motion for Entry of Judgment, specifically stating in its oral reasons for judgment that the resolution was a judgment pursuant to La. C.C.P. art 970 and was not a La. C.C. art. 3071 compromise. Notably, Liberty Mutual signed the February 15, 2008 judgment of dismissal.

Rather than appealing this judgment, Liberty Mutual filed a motion for summary judgment with the OWC, submitting the same argument that had already been rejected by the district court: that the resolution of the third party claim was a settlement, not a judgment. In making this argument, Appellant sought to establish that Mr. Demarco had waived his benefits under La. R.S. 23:1102, which provides that if an employee reaches a compromise with a third party and does not LoMam prior written approval from his employer, the employee waives his right to future benefits. Despite being presented with both the district court’s judgment and its oral reasons stating that the resolution was not a settlement, the OWC granted the motion for summary judgment on November 12, 2008, finding that the resolution of the third party suit was an Article 3071 compromise and not a judgment, thereby precluding Appellant’s right to future benefits. This appeal followed.

STANDARD OF REVIEW

An appellate court reviews a grant of summary judgment de novo, applying the same criteria as the district court. Carsice v. Empire Janitorial, 2008-0471, p. 2 (La.App. 4 Cir. 12/17/08), 2 So.3d 553, 554.

DISCUSSION

Two errors are assigned for our review. Appellant first argues that the OWC erred in failing to recognize the jurisdictional authority of the district court’s judgment and that judgment’s binding effect on the legal issue presented to the OWC. Appellant further argues that the OWC erred in dismissing his claim in its entirety when medical bills related to his accident totaling $76,106.08 remain unpaid.

Effect of District Court Judgment

District courts are vested with original jurisdiction over all criminal and civil matters as established by La. Const, art. 5, § 16. Exceptions to that general rule are narrowly construed. Gunderson v. F.A. Richard & Associates, Inc., 2007-331, p. 4 (La.App. 3 Cir. 2/27/08), 977 So.2d 1128, 1133. Likewise, La. R.S. 23:1310.3 provides for the OWC’s original jurisdiction for claims arising under the Workers’ Compensation Act. In this case, the district court properly exercised its authority over the civil suit between Appellant, Liberty Mutual, and First Financial.

In Albe v. Louisiana Workers’ Compensation Corp., the Louisiana Supreme Court acknowledged that Louisiana courts have consistently held that “where the subject matter of the claim is other than an agency determination of benefits and penalties directly associated with an employee’s work-related injury, the district courts are not deprived of jurisdiction.” Albe, 97-0581 (La.10/21/97), 700 So.2d 824, 829; see also Gordon v. Waste Management of New Orleans, 648 So.2d 1037 (4th Cir.1994). The Louisiana Constitution authorizes the OWC’s adjudication of workers’ compensation claims that arise under the Act itself. Broussard Physical Therapy v. Family Dollar Stores, Inc., 2008-1013, p. 5 (La.12/2/08), 5 So.3d 812, 815 (quoting Albe, 97-0581, 700 So.2d at 829). Thus, “[mjere involvement of workers’ compensation issues is insufficient; such disputes may ‘relate to’ |,^workers’ compensation matters, but they do not ‘arise out of the Act.” Broussard Physical Therapy, 2008-1013, p. 9, 5 So.3d at 817.

Therefore, the OWC’s judgment, which made a determination of the same issues presented to the district court, exceeded its jurisdictional authority. Moreover, La. R.S. 23:1102 is inapplicable to the facts of the instant case, as the district court explicitly stated that the resolution of Mr. DeMarco’s claims against the carriage company was a La. C.C.P. art. 970 judgment and not a compromise. A plain reading of the statute evidences that judgments are not encompassed by La. R.S. 23:1102. Accordingly, we find that the OWC’s judgment precluding Mr. DeMar-co’s right to future benefits is erroneous and must be reversed.

Res Judicata

Appellant further asserts that res judicata principles require reversal, as the OWC was legally bound to follow the district court judgment; thus, as a matter of law, Liberty Mutual was precluded from relitigating a previously resolved legal issue arising out of the same operative facts and circumstances. La. R.S. 13:4231 ; Burguieres v. Pollingue, 2002-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053 (La.2003). The Burguieres Court held that a subsequent action is precluded when all of the following are satisfied:

(1) the judgnent is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgnent in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.

Id.

In this case, the February 2008 decision was a valid and final judgment; the parties in the present motion are identical; the claim is identical to that raised in the district court (but with the OWC reaching the opposite result); and the claims made by Liberty Mutual arose out of the same transaction or occurrence that was the subject matter of the district court litígation. The valid and final judgment of the district court between appellant and Liberty Mutual is thus binding on the OWC.

Medical Expenses

In the second and final assignment of error, Appellant argues that the motion at the OWC addressed only the question of future benefits. Appellant also submits that dismissal of the entire claim when past medical expenses were still outstanding requires reversal. Because we have determined that the matter be |7reversed and remanded to the OWC for further proceedings, it is unnecessary to address this assignment of error.

CONCLUSION

For the foregoing reasons, we conclude that summary judgment was improper and remand to the OWC for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The October 22, 2007 judgment of partial dismissal reflects that judgment was entered against Gay 90's Carriages in the amount of $25,000.00.

      .
      A. At any time more than thirty days before the time specified for the trial of the matter, without any admission of liability, any party may serve upon an adverse party an offer of judgment for the purpose of settling all of the claims between them. The offer of judgment shall be in writing and state that it is made under this Article: specify the total amount of money of the settlement offer; and specify whether that amount is inclusive or exclusive of costs, interest, attorney fees, and any other amount which may be awarded pursuant to statute or rule. Unless accepted, an offer of judgment shall remain confidential between the offeror and offeree. If the adverse party, within ten days after service, serves written notice that the offer is accepted, either party may move for judgment on the offer. The court shall grant such judgment on the motion of either party.
      La. C.C.P. art. 970(A).

      ."A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship." La. C.C. art. 3071.

      . La. Const, art. 5, § 16(A)(1) provides that "[ejxcept as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters."

      . Except as otherwise provided by R.S. 23:1101(B), 1361, and 1378(E), the workers' compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers' compensation insurers or self-insurance group funds for indemnification or contribution, concursus proceedings pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. concerning entitlement to workers' compensation benefits, payment for medical treatment, or attorney fees arising out of an injuiy subject to this Chapter.
      La. R.S. 23:1310.3 E (emphasis added).

      . The Supreme Court further noted that "the fact that it may be more judicially efficient to adjudicate [aj third party demand in the same forum as the main demand is insufficient to confer subject matter jurisdiction." Broussard Physical Therapy, 2008-1013, p. 9, 5 So.3d at 817-18. See also Ryan v. Blount Bros. Const. Inc., 40,845, p. 5 (La.App. 2 Cir. 4/19/06), 927 So.2d 1242, 1247 ("If an issue arises out of the Workers’ Compensation Act, jurisdiction is vested in the OWC; however, if it merely relates to the compensation claim, the OWC does not have subject matter jurisdiction.”); TIG Ins. Co. v. Louisiana Workers' Compensation Corp., 2004-2608, p. 4 (La.App. 1 Cir. 6/10/05), 917 So.2d 26, 27 ("The jurisprudence clearly establishes that the mere involvement of the workers’ compensation statute or a workers' compensation claim does not automatically subject the entire matter to the jurisdiction of the OWC.”).

      . The OWC judgment states that it found that the district court matter “dismissed only the third-party claim against third-party defendants and did not attempt to decide any issue effecting Mr. DeMarco's workers’ compensation claim, which issues are exclusively within the jurisdiction of this Court...."

      . "If the employee ... fails to obtain written approval of the compromise [with the third party] from the employer and insurer at the time of or prior to such compromise, the employee or his dependent shall forfeit the right to future compensation, including medical expenses.” La. R.S. 23:1102(B)(emphasis added).

      . One court has noted that amendments to La. R.S. 23:1102 (Sections B and C) "were clearly intended to strengthen the employer's hand when there is the possibility of recovery against the tortfeasor, and that possibility ends in settlement rather than a judgment” against the tortfeasor. Darbonne v. M & M Right of Way Contractors, 96-1730, p. 5 (La.App. 3d Cir.4/30/97), 693 So.2d 299, 302 (quoting W. Malone & A. Johnson, 14 Louisiana Civil Law Treatise, Workers’ Compensation Law and Practice, Sec. 373 at page 311 (3rd ed.1994)(emphasis in original)).

      . La. R.S. 13:4231 provides, in pertinent part:
      Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
      (1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
      (2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
      (3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

      . We are not persuaded by Liberty Mutual’s argument that it was a "stranger” to the proceedings pursuant to Louisiana Workers' Compensation Corporation v. Betz, 2000-0603 (La.App. 4 Cir. 4/18/01), 792 So.2d 763. Betz is distinguishable for several reasons. In Betz, a settlement was at issue, not a judgment. In this case, no settlement agreement was reached between the parties. Moreover, the record evidences that Liberty Mutual was an active participant in the litigation.


author: TERRI F. LOVE, Judge. BONIN, J.,

text:
    In re MEDICAL REVIEW PANEL PROCEEDINGS OF Milton BERRY.
    No. 2009-CA-0752.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 27, 2010.

      Terry L. Bonnie, Terry L. Bonnie, APLC, Baton Rouge, LA, for Appellant, Milton Berry.
    Peter E. Sperling, James P. Waldron, Frilot L.L.C., New Orleans, LA, for Tulane University Hospital and Clinic.
    Bryan J. Knight, Stewart E. Niles, Jr., Michelle A. Bourque, Niles Bourque Fon-tana & Rice, L.L.C., New Orleans, LA, for Appellee, Dr. James Butler.

      (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

|,Plaintiff/Appellant, Milton Berry, has appealed the trial court’s judgment granting an exception of prescription. Defendants, Tulane University Hospital and Clinic and Dr. James Butler filed exceptions of prescription, asserting that the appellant’s claims had prescribed. The trial court granted their exceptions and it is from those judgments appellant appeals. We find sufficient support for the trial court’s grant of the exceptions and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Milton Berry (“Mr. Berry”), Plaintiff/Appellant, filed a request for review with the Louisiana Patient’s Compensation Fund (PCF), alleging medical malpractice in the treatment of his right knee and naming as defendants, Ochsner Clinic Limited Liability at New Orleans, Infusion Partners-New Orleans, Dr. James Butler, Dr. Sunii, Dr. Witzig, Dr. Laundry, Dr. Garcia, and Tulane University Hospital and Clinic.

Mr. Berry alleged medical malpractice as a result of injuries sustained from |2a series of twelve (12) unsuccessful right knee surgeries, spanning a period of six (6) years as follows:

Mr. Berry’s treatment began in August of 1999, when Mr. Berry presented to Dr. Butler at Tulane University Hospital with complaints of pain in his right knee that occurred when walking and ascending or descending stairs. Dr. Butler examined Mr. Berry and conducted testing, after which he determined that Mr. Berry’s knee was rubbing bone against bone. Dr. Butler concluded that a total knee replacement was necessary. The knee replacement was to increase flexion to 80 degrees and eliminate symptoms of pain.

In early 2000, Dr. Butler performed a total knee replacement, installing a prosthetic right knee. Mr. Berry then began physical therapy and participated in other routine therapy while an in-patient and as an out-patient. However, Mr. Berry continued to have pain and limitations in his knee, and a second knee surgery was also performed in early 2000. After the second knee surgery, Dr. Butler informed Mr. Berry that the problem arose from scar tissue and was told that one-in-a-million legs don’t bend correctly.

Also, in March 2000, a third knee surgery was performed, resulting in scar tissue to the extent that the only way to correct it was to perform a fourth knee surgery in December 2000. In August 2001, a fifth knee surgery was performed to loosen screws in the knee in an attempt to achieve a 90-degree bend at the knee. However, after surgery, only a 70-degree bend was achieved.

|sDr. Butler later performed a sixth and seventh knee surgery. After these surgeries, Mr. Berry’s knee began to swell. In March 2002, Dr. Butler refused to see Mr. Berry. However, after Mr. Berry made demands, Dr. Butler saw Mr. Berry and told him that a bone was preventing the knee from bending at an 85-90-degree angle.

In the summer of 2004, Dr. Butler then performed an eighth knee surgery, during which he cut more bone. Also in late 2004, a ninth knee surgery was performed, wherein Dr. Butler removed more bone and scar tissue. Mr. Berry’s right leg began to turn blue after this ninth surgery.

Dr. Butler again refused to see Mr. Berry. During this timeframe, Mr. Berry’s leg became infected and pus protruded from his leg upon touching. These problems persisted in 2004 and 2005, and Mr. Berry continued having the same problems with his knee.

Mr. Berry sought physical therapy, at which point a physical therapist advised Mr. Berry that he needed to see his doctor regarding worsening protrusion in the knee. In May 2005, a tenth surgery was performed to drain the infection from the knee and to clean and treat the prosthesis to fight detected bacteria. In December 2005, an eleventh and twelfth surgery were performed on Mr. Berry to insert cement in the knee and treat bacteria.

At the time of his original claim, Mr. Berry claimed that he was continually experiencing complications with his knee, ongoing infection, and treatment. Mr. Berry averred that the defendants/appellees made mistakes during his surgical | treatment process and unsuccessfully attempted to correct those mistakes with subsequent surgeries, which resulted in the appellant’s original claim of medical malpractice. After six (6) years of treatment, Mr. Berry had a severely infected knee, needed removal of the original prosthesis to treat the infection, as well as the removal of bone to treat the infection, and suffered from continuing infection, pain and restrictions in his right knee. He also claimed a psychological component of injury, which he maintained arose as a result of the defendants’ negligent treatment.

Mr. Berry’s original claim of medical malpractice was dated September 19, 2007; a supplemental request for leave to amend that claim was made on the same date, and was received by the PCF on September 21, 2007.

On September 28, 2007, the PCF acknowledged receipt of Mr. Berry’s September 19, 2007 filing by notice to Mr. Berry’s counsel, and the PCF requested that a specific description of alleged malpractice as to each named defendant and complete names of healthcare providers be provided within 10 days of the date of the notice. The PCF also advised Mr. Berry that Act 961 of the 2003 Regular Session requires a filing fee of $100 per named, qualified healthcare provider; however the notice stated that qualification could not be yet determined without the supplemental information.

Mr. Berry filed an Amended Claim of Malpractice with the PCF on October 11, 2007, including the requested supplemental information, again naming Dr. James Butler and adding Tulane University Hospital and Clinic (“TUHC”) as the |r,defendants. Therein, Mr. Berry claimed that the care and treatment provided by Dr. Butler and TUHC during these procedures constituted negligence and a breach of the standard of care.

On January 8, 2008, the PCF informed Mr. Berry’s counsel that his complaint was considered invalid and without effect due to his failure to timely remit the appropriate filing fee. This notice stated that previously, on October 22, 2007, the PCF advised Mr. Berry’s counsel that he had 45 days to submit the requisite filing fee, however no such correspondence is contained in the record. On January 14, 2008, Plaintiff refiled the PCF complaint against Tulane University Hospital and Clinic (“TUHC”) and Dr. Butler, reiterating the allegations contained in his October 11, 2007 PCF claim of medical malpractice.

In response, the defendants filed Exceptions of Prescription, based on Mr. Berry’s October 2007 PCF complaint being prescribed on its face as it was filed more than one year after the alleged negligent act(s) and the January 2008 complaint being filed more than one year after discovery of the act(s). The trial court granted the defendants’ exceptions of Prescription and found Plaintiffs PCF Complaint was prescribed.

STANDARD OF REVIEW

“A court of appeal may not set aside a trial court’s or a jury’s finding of fact in absence of ‘manifest error’ or unless it is ‘clearly wrong.’ ” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). The appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one, after reviewing the record in its entirety. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987); Rosell, supra; Stobart, supra. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Stobart, supra.

PRESCRIPTION

The appellant assigns error to the trial court’s failure to consider the mailing of his complaint to the PCF on September 19, 2007, and finding his claim was invalid and without effect due to his failure to submit the requisite filing fee.

In their exceptions of prescription, the appellees contended Mr. Berry’s medical malpractice claims were prescribed as the last alleged act of malpractice occurred on an unspecified date in December 2005. They argue that the claims prescribed because Mr. Berry failed to file his PCF claim within one year of that date-by December 2006.

The appellant argues that the last date of malpractice was not December 2005; rather, “the date was extended much later due to the doctrines of contra non valen-tem and/or continuing tort.” Mr. Berry attested that he did not discover the alleged malpractice until at least November 2006. Mr. Berry therefore argues that as his PCF claim was originally filed on September 19, 2007, it was timely filed within one year of his discovery of the alleged malpractice.

|7The appellees submit that even if plaintiff did not discover the alleged malpractice until November 2006, his January 14, 2008 PCF claim, filed after the PCF notified him that his original claim was invalid, is still untimely since it was not filed within one year of his discovery of the malpractice November 2007.

The trial court stated the following:

“Despite Plaintiff mailing his complaint to the PFC [sic] on September 19, 2007, his claim was rendered invalid and without effect based on his failure to submit the requisite filing fee. The Court finds that this fact, the failure to submit the requisite filing fee, is an undisputed fact.
The Court finds that the PFC [sic] complaint filed on January 14, 2008 is prescribed. Based on the Plaintiffs evidence, the latest date of the discovery of any alleged malpractice was in November 2006. As such, the PCF complaint should have been filed no later than November 30, 2007. The Medical Malpractice Act and Louisiana jurisprudence makes it clear that a PCF complaint is not considered filed until the fee is paid. As such, the September 19, 2007 filing will not be considered for purposes of interrupting the prescriptive period. Therefore, the exception is granted.”

The exception of prescription is a peremptory exception. La. C.C.P. art. 927. “[P]rescriptive statutes are strictly construed against prescription.... ” Carter v. Haygood, 04-0646, p. 10 (La.1/19/05), 892 So.2d 1261, 1268. If amendment of the petition can cure the basis for the peremptory exception, the trial court “shall order such amendment within the delay allowed by the court.” La. C.C.P. art. 934. The exceptor bears the burden of proof at the trial of the peremptory exception. Spott v. Otis Elevator Co., 601 So.2d 1355, 1361 (La.1992). However, the burden shifts to the plaintiff if prescription is evident on the face of the pleadings. Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La.1993).

18La. R.S. 9:5628 provides the prescriptive period for medical malpractice and reads, in pertinent part:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect. (Emphasis added)

La. R.S. 9:5628.

“Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.” Campo v. Correa, 01-2707, pp. 11-12 (La.6/21/02), 828 So.2d 502, 510. Even if a plaintiff does not have actual knowledge entitling him to bring a suit, constructive knowledge that excites attention and puts the “injured party on guard and call for inquiry is sufficient. Id. at p. 12, 828 So.2d at 510-11. “Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription.” Id. at p. 12, 828 So.2d at 511.

Mere apprehension “that something is wrong is not sufficient to start prescription unless plaintiff knew or should have known by exercising reasonable diligence that his problem condition may have been caused by acts of malpractice.”0 Gunter v. Plauche, 439 So.2d 437, 439 (La.1983). “[P]rescription does not run as long as it was reasonable for the victim not to recognize that the condition may be | related to the treatment.” Griffin v. Kinberger, 507 So.2d 821, 823-24 (La.1987). However, “knowledge that an undesirable condition has developed ... after medical treatment does not equate to knowledge of everything to which inquiry might lead.” Campo, 01-2707, p. 15, 828 So.2d at 512-13.

On September 19, 2007, Mr. Berry made a claim with the PCF for damages caused by medical malpractice; on this same date, Mr. Berry’s counsel filed a request for leave to amend that claim. The original claim was against the following parties: Oschner Clinic Limited Liability at New Orleans, Infusion Partners-New Orleans, Dr. James Butler, Dr. Sunii, Dr. Witzig, Dr. Laundry, and Dr. Garcia. Mr. Berry amended the claim of malpractice, listing Dr. Butler as a defendant and adding Tulane University Hospital and Clinic as a defendant.

On September, 28, 2007, the PCF sent a letter to Mr. Berry’s attorney, advising that the request made on behalf of Mr. Berry for a medical review panel had been received, additional information needed to be provided, and a decision on which defendants were qualified “cannot be determined without this information.” The letter also advised the attorney that, in accordance with Act No. 961 of the 2003 Regular Session, a filing fee of $100 “per named, qualified health care provider” must be remitted “within 45 days of the notice from this office that named providers are qualified.”

At the hearing, the following exhibits were entered into evidence: the original claim of September 19, 2007; a letter of the same date requesting leave to amend the original claim; a letter of September 28, 2007, requesting additional | ^information to determine qualification of healthcare providers, on which the filing fee assessment would be based; the amended claim of October 11, 2007; and the PCF’s January 8, 2008 letter, notifying Mr. Berry’s counsel that the claimant failed to remit the filing fee and therefore the claim was considered invalid and without effect as to Dr. Butler and Tulane University Hospital and Clinic.

The letter of January 8, 2008 referenced an October 22, 2007 advisement that the claimant had 45 days to remit filing fees in the amount of $200.00. The letter was addressed to Mr. Berry’s counsel and states, “[o]n October 22, we advised you that ... you had 45 days to remit filing fees of $200.00, a physician’s affidavit, or a forma pauperis ruling and that failure to comply with the provisions of the Act would render your request for review invalid and without effect as to Dr. James Butler and Tulane University Hospital and Clinic.” The letter further states that “[w]e did not receive the filing fees, thus you have failed to comply within the time allowed; therefore the above-cited case is considered invalid and without effect as to Dr. James Butler and Tulane University Hospital and Clinic.”

La. R.S. 40:1299.47(A)(l)(c), as amended by Act 961 of the 2003 Regular Session of the Louisiana Legislature, reads in relevant part as follows:

(c) A claimant shall have forty-five days from the mailing date of the confirmation of receipt of the request for review ... to pay to the board [the oversight board of the Fund] a filing fee in the amount of one hundred dollars per named defendant qualified under this Part.

La. R.S. 40:1299.47(A)(l)(c).

The record before us does not contain the actual notice of which named providers were actually qualified and the amount of payment due within 45 days of |T1the date of the notice. However, while the record does not contain the letter, counsel for the appellant concedes that he received such a letter. Further, counsel maintains that the appellant failed to remit payment in the amount requested within 45 days of the date of the notice as requested in the letter.

This Court and others have recently reviewed a number of cases involving prescription based on a medical malpractice claimant’s failure to submit filing fees or evidence of waiver thereof within 45 days of the date such a notice. See, e.g., Golden v. Patient’s Comp. Fund Oversight Bd., 40,801 (La.App. 2 Cir. 3/8/06), 924 So.2d 459, writ denied, 06-0837 (La.6/2/06), 929 So.2d 1261; In re Igwike, 06-0167 (La.App. 4 Cir. 5/23/07), 959 So.2d 562; Latiolais v. Jackson, 06-2403 (La.App. 1 Cir. 11/2/07), 979 So.2d 489; and Lane v. Patient’s Comp. Fund Oversight Bd., 07-0150 (La.App. 1 Cir.2/27/08), 4 So.3d 802. The courts concluded that when a claimant does not remit payment or proof of waiver of filing fees within the 45-day time limit, that claimant’s request for review of a medical malpractice claim is invalid and without effect.

The jurisprudence outlines the notification, qualification and payment remission process. In Igwike, the PCF sent a letter to Ms. Igwike’s attorney in which the PCF advised the attorney that the request made on behalf of Ms. Igwike for a medical review panel had been received and that Memorial Medical Center and Dr. William F. Von Almen, II were both providers who were qualified under the Act. Igwike, 06-0167, p. 2, 959 So.2d at 563. The letter also advised the 112attorney that “[i]n accordance with Act No. 961 of the 2003 Regular Session, which amended La. R.S. 40:1299.47(A)(l)(c), effective August 15, 2003, a filing fee of $100 per qualified defendant is due within 45 days from the date of this notice.” Id. A filing fee in the amount of $200.00 was requested, and the letter further stated that the filing fee could be waived only if certain documents were received by the Fund in lieu of the fee. Id. Specifically, Ms. Igwike was required to pay a filing fee, submit a physician’s affidavit, or provide an in forma pauperis court ruling to the Fund within forty-five days of the mailing date of the notice. Id., p. 8, 959 So.2d at 566.

However, Ms. Igwike’s in forma pauper-is affidavit, which she sought to file in lieu of the required filing fee, was untimely received by the PCF. Id., pp. 8-9, 959 So.2d at 566. The court found that at eai-liest, Ms. Igwike sent the affidavit on the 45th day, such that it could not have been received within the applicable time period. Id. Therefore, the court determined that Ms. Igwike’s request for a medical review panel was without effect. Id., p. 9, 959 So.2d at 566.

Like Igwike, the trial court found that Mr. Berry’s request for a medical review panel was invalid and without effect. Mr. Berry attested that latest date of the discovery of any alleged malpractice was in November 2006. Given that, the PCF complaint was to be filed by November 30, 2007. Mr. Berry’s subsequent January 14, 2008 complaint, filed after notification that his September 19, 2007 complaint was invalid, did not cure the prescription defect that arose by his failure to timely submit the filing fee as requested by the PCF. We therefore find no error |isin the trial court’s finding that Mr. Berry’s request for a medical review panel was invalid and without effect.

The appellant also asserts that his September 19, 2007 complaint was improperly declared invalid and without effect by PCF.

In Golden, the PCF board acknowledged Golden’s request for the medical review panel and notified her counsel that Willis-Knighton Medical Center was a qualified health care provider under the Medical Malpractice Act. Golden, 40,801, p. 1, 924 So.2d at 460. In Golden, the plaintiff submitted the filing fee after the 45-day time period expired. Id. After paying the filing fee, the plaintiff notified the PCF that the parties had selected an attorney-chairman of the Medical Review Panel and wished to have the board notify him of their decision. Id., p. 2, 924 So.2d at 460-61. The PCF returned the untimely filing fee and refused to notify the attorney-chairman because it no longer considered the claim filed, due to the plaintiffs failure to pay the filing fee timely. Id., p. 3, 924 So.2d at 461. The court held that the PCF’s duties under La. R.S. 40:1299.47(A)(3) are “mandatory duties of a clerical nature to facilitate the panel process,” and the PCF had no authority to unilaterally stop the process as they did in this case. Id., p. 6, 924 So.2d at 463. The only thing the PCF is authorized to do when the required filing fee is not timely paid is to notify all the parties. Id.

In Latiolais, the court expounded on the court’s holding in Golden. Latiolais, 06-2403, p. 6, 979 So.2d at 493. The PCF mailed a letter to Mr. Latiolais’s attorney, acknowledging receipt of the request for a medical review Impanel and assigned a PCF number. Id., p. 2, 979 So.2d at 490. However, Mr. Latiolais claimed that he never received the letter from the PCF stating that a filing fee was due, and Mr. Latiolais refiled his claim thereafter along with a letter stating such. Id., p. 3, 979 So.2d at 491. The court stated that “[t]he defendants must assert prescription if that claim is viable, and the PCF must continue to perform its ministerial duties.” Id., p. 6, 979 So.2d at 493.

In Lane, the court stated that “[t]he defendants must assert prescription if that claim is viable, and the PCF must continue to perform its ministerial duties.” Lane, 07-0150, 4 So.3d at 803.

As the Golden court stated, “it is not the PCF Board’s place to assert prescription and effectively dismiss plaintiffs claim with prejudice.” Golden, 40,801, p. 8, 924 So.2d at 464. “The defendant alone may choose to assert prescription.” Id. Therefore, the defendants rather than the PCF are the proper party to assert the invalidity of the previous PCF complaint as a basis to challenge a subsequently filed PCF complaint as prescribed.

In the matter before us, the defendants asserted prescription through filed exceptions. The PCF advised Mr. Berry’s counsel that he had 45 days to submit the requisite filing fee or documents required under law in lieu of that submission. Therefore, Mr. Berry was required to pay a filing fee, submit a physician’s affidavit, or provide an in forma pauperis affidavit to the PCF within forty-five days of the October 22, 2008 letter.

| isMr. Berry’s counsel concedes that Mr. Berry failed to meet this requirement. Thus, as the trial court stated, the fact that Mr. Berry failed to remit the requisite filing fee is undisputed. The PCF subsequently informed Mr. Berry’s counsel of that failure. Therefore, the trial court granted defendants’ exceptions of prescription, which rendered Mr. Berry’s claim invalid and without effect.

We find sufficient support for and no error in the trial court’s granting of the exceptions of prescription. We therefore affirm the trial court’s judgment.

DECREE

The trial court’s granting of the exceptions of prescription is affirmed.

AFFIRMED.

BONIN, J., concurs with reasons.

BONIN, J.,

concurring.

hi respectfully concur.

In response to Mr. Berry’s claim for medical malpractice review filed on January 14, 2008 with the PCF, the healthcare providers, Dr. Butler and Tulane University Hospital, filed the plea of liberative prescription of one year. La. R.S. 40:1299.47 B(2); La. C.C. art. 3447. Because that written request alleged the date of the last act or omission as no later than December 31, 2005 and it did not allege a later “date of discovery of the alleged act, omission, or neglect,” the action was prescribed on its face. See La. R.S. 9:5628 A. See also Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502. When an action is prescribed on its face, the patient bears the burden of showing that the action has not prescribed. See LeBreton v. Rabito, 97-2221, p. 6 (La.7/8/98), 714 So.2d 1226, 1228. Stated another way, the burden is upon the patient to prove that the filing was timely and that his action is not barred by his inaction for a period of more than one year. See Campo v. Correa, 01-2707, p. 9-10, 828 So.2d at 509.

Mr. Berry sought to establish the timeliness of his action by showing that he had filed an earlier claim with the PCF within one year of his discovery of the health care providers’ malpractice. The trial court determined from the patient’s evidence at the hearing that the latest date of discovery of any alleged malpractice |2was in November 2006. This finding is subject to manifest error review. See Marino v. Tenet Healthsystem Medical Center, 09-915 (La.App. 4 Cir. 11/24/09), 26 So.3d 297, 300. Mr. Berry’s contention is that an earlier, identical written request for malpractice review, filed with the PCF on September 19, 2007 suspended the prescriptive period. See La. R.S. 40:1299.47 A(2)(a). But the healthcare providers respond that the September 19, 2007 claim filed with the PCF was not a valid request which suspended the time within which to bring a proper legal action because Mr. Berry never timely paid the filing fee of $200, which was undisputed. See La. R.S. 40:1299.47 A(l)(c) through (e). The failure to timely pay the filing fees with the PCF “shall render the request for review of a malpractice claim invalid and without effect.” La. R.S. 40:1299.47 A(1)(e); Bosarge v. Louisiana Patient’s Compensation Fund, 08-1923 (La.App. 1 Cir. 5/8/09), 16 So.3d 10. Without timely payment of the fees, the September 19, 2007 request, despite being filed within one year of the date of discovery of the malpractice, is “invalid and without effect” and is no avail to Mr. Berry in proving the timeliness of his January 14, 2008 request. See Smart v. West Jefferson Medical Center, 09-366, p. 3 (La.App. 5 Cir. 11/24/09), 28 So.3d 1119, 1123 (“As the filing fees required by statute were not timely paid for the original malpractice claim and request for medical review panel, the request for review of the malpractice claim is invalid and without effect. That is, it has no effect on the running of prescription of the claim.”).

In view of the Louisiana Supreme Court’s pronouncement on rehearing in Borel v. Young, 07-0419, p. 27 (La.7/1/08), 989 So.2d 42, 68 (“[T]he specific provisions of the Medical Malpractice Act regarding the suspension of prescription |3against joint tortfeasors apply to the exclusion of the general code article on interruption of prescription against joint tortfeasors, LSA-C.C. 2324(C).”), Mr. Berry suggests no other legal or factual grounds to prove that this request was otherwise timely. See also Richard v. Tenet Health Systems, Inc., 03-1933, p. 3 n. 1 (La.App. 4 Cir. 4/14/04), 871 So.2d 671, 673 n. 1.

The patient, in the view of the trial court, did not carry his burden of proof. Mr. Berry’s request for review of his malpractice claim against Dr. Butler and Tulane University Hospital is barred by his inaction for more than one year after the discovery of the malpractice. The plea of prescription filed by the healthcare providers was properly sustained by the district court and the claim dismissed with prejudice. La. C.C.P. arts. 927 A(l) and 934. I, therefore, concur.

      . The spelling of Dr. Laundiy’s name is used interchangeably as "Laundry” and "Landry” in the record.

      . Counsel for the appellant states that he, in fact, received this notification as to which of the named healthcare providers were "quali-fled” under Act 961 and that the letter requested that a specific fee be remitted within 45 days of that notice.

      . Counsel for Mr. Berry demonstrated commendable candor to the court about the circumstances of the non-payment.

      . We recently denied supervisory relief from an interlocutory judgment denying an exception of prescription and upheld the trial court at this stage of the proceedings where it con-eluded on the facts that the matter was not prescribed despite the invalidity of the earlier PCF complaint due to non-payment of the filing fees. In re Medical Review Panel Proceedings For the Claim of Bosarge, 09-1345 (La.App. 4 Cir. 11/13/09) (unpub.).