text:
    Michael DELATTE v. PALA GROUP, LLC and Zurich Insurance Company.
    No. 2009 CA 0913.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2010.
    Writ Denied May 7, 2010.

      Anna E. Dow, Gonzales, LA, for Plaintiff-Appellee Michael Delatte.
    David T. Butler, Jr., Funderburk & Andrews, Baton Rouge, LA, for Defendants-Appellants Pala Group, LLC and Zurich Insurance Co.
    Before PARRO, KUHN, and McDonald, jj.
   PARRO, J.

|2In this workers’ compensation case, Pala Group, LLC (Pala) and its insurer, Zurich Insurance Company (Zurich), appeal an award of benefits to Michael De-latte. Delatte answered the appeal, seeking additional temporary total disability benefits, as well as attorney fees, penalties, and all costs in the workers’ compensation court and in this appeal. For the following reasons, we amend the judgment and affirm as amended.

BACKGROUND

Delatte was employed as a pipefitter by Pala, and on December 6, 2006, he suffered a back injury at work while trying to open a large valve. An accident report was completed, and Pala sent him to see a doctor that day and for a follow-up visit a week later. Both times, the doctor performed a brief examination and released him to return to work “as tolerated.” He continued to work for Pala until January 15, 2007, when he was laid off due to a reduction in force. On January 16, he was hired by Jacobs Field Services North America, Inc. (Jacobs) as a pipefitter to work at ExxonMobil. Delatte passed a physical before beginning the job at Jacobs, and when filling out the required paperwork, Delatte responded “N/A” as to the date of injury and reported he was not taking any medications. He mentioned a prior back surgery in 1994, but stated there had been no problems since then. On a second-injury-fund questionnaire through Jacobs, Delatte did not list any injury occurring during his employment with Pala.

Delatte continued working with Jacobs until he was hired by DMI on February 19, 2007. DMI’s employment records are consistent with those of Jacobs, with De-latte mentioning the 1994 injury and no mention of an injury occurring at Pala. He also marked “No” as to any condition or injury that might impair or limit his ability to work. Delatte was still working for DMI on Thursday, March 15, 2007, was off the next three days, and on Monday, March 19, 2007, went to see a chiropractor, where he stated on a form that the visit 13was not related to an auto-related or work-related injury. The chiropractor sent him to the St. Elizabeth Hospital emergency room, where he reported right hip pain starting two days earlier and moving into the right thigh. The chiropractor then recommended that Delatte obtain an MRI and consult with a neurosurgeon, and he began seeing Dr. Luke Corsten. An MRI in March 2007 showed a disc herniation at L4-L5, which Dr. Corsten stated was causally connected to Delatte’s employment injury at Pala. He recommended various treatments, but Delatte could not afford to pay for further treatments, and none were approved by Pala. Pala did not send Delatte to a physician of its choice to obtain a second opinion and refused to pay any medical bills or benefits. On June 27, 2007, Delatte filed this disputed claim for compensation.

The workers’ compensation judge (WCJ) concluded after a trial that Delatte had a herniated disc and a pinched nerve as a result of the accident at Pala on December 6, 2006, and ordered that payment of benefits be based on a workers’ compensation rate of $478, an average weekly wage of $844.58, and an average monthly wage of $3,659.85. She ordered temporary total disability benefits from May 3, 2007, through September 23, 2007, and supplemental earnings benefits from September 24, 2007, through the present and continuing. The WO also declared that Delatte was entitled to all reasonable and necessary medical treatment related to his back condition, and ordered Pala to pay for all past medical treatment and out-of-pocket expenses incurred by Delatte from December 6, 2006, subject to any credits. The WCJ found Pala had reasonably controverted the claim, and did not award penalties or attorney fees; each party was responsible for its own costs.

In reasons for judgment, the WCJ stated she was highly persuaded by Dr. Cor-sten’s deposition testimony. She also noted that the time between the accident at Pala and the worsening back pain was only three months, that a coemployee testified that Delatte had self-limited his work activities during that period, that there was no intervening cause for the condition, and that she 14accepted his testimony as credible.

In this appeal, Pala argues that Delatte failed to establish a causal relationship between the accident that occurred in the course and scope of his employment with Pala in December 2006 and the injury for which he is seeking benefits. Delatte contends additional total temporary disability benefits should have been awarded from March 19, 2007, through May 2, 2007, and that Pala did not have information upon which to reasonably controvert his claim for benefits and medical treatment when that claim was made. Therefore, he seeks attorney fees, penalties, and all costs.

BURDEN OF PROOF/CAUSATION

A workers’ compensation claimant bears the burden of establishing a causal connection between the work accident and the resulting disability by a preponderance of the evidence. Clark v. Godfrey Knight Farms. Inc., 08-1723 (La.App. 1st Cir.2/13/09), 6 So.3d 284, 292, writ denied, 09-0562 (La.5/29/09), 9 So.3d 163. An employee’s work-related accident is presumed to have caused his disability when the claimant proves that before the accident, he had not manifested his disabling symptoms; that commencing with the accident, disabling symptoms appeared; and that there is either medical or circumstantial evidence indicating a reasonable possibility of a causal connection between the accident and the disabling condition. Hayes v. Louisiana State Penitentiary, 06-0553 (La.App. 1st Cir.8/15/07), 970 So.2d 547, 556, writ denied, 07-2258 (La.1/25/08), 973 So.2d 758.

In determining whether the worker has discharged his burden of proof, the WCJ should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” Hayes, 970 So.2d at 555. The WCJ’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations, which are not to be disturbed on review unless clearly wrong or manifestly erroneous. Id.

| sThe record includes testimony from Delatte and co-worker Patrick Banks, the deposition of Dr. Corsten, Delatte’s medical records, and his employment records with Pala, Jacobs, and DMI. Delatte testified that he and an operator at the Motiva plant were trying to open a stuck 24-inch valve, using a hydraulic machine and a large lever. After pulling on the lever several times, Delatte said he felt a “twitch” in his lower back. He asked Banks to assist the operator, and reported the injury to the safety manager at the plant.

Delatte completed an accident report, after which the safety manager sent him to Dr. Stephen Holmes at Ascension Medical Clinic. Dr. Holmes examined him by having him bend over, stoop down, and perform similar movements, which Delatte said he was able to accomplish, but in pain. Dr. Holmes sent him back to work on light duty. He returned to Dr. Holmes on December 14, 2006. At that visit, Dr. Holmes said Delatte’s back was sprained and released him to full duty work. Delatte stated that after the accident, he had constant pain in his back while he worked and did not do any heavy-duty work at all. Delatte testified that Pala knew he was limiting his activities and allowed him to do so. However, on January 15, he was laid off due to a reduction in force.

The next day, Jacobs hired him to work as a pipefitter at ExxonMobil in Baton Rouge. Delatte said he was able to avoid any heavy lifting, because there were several people in the crew, including Banks, and he let them do the heavy work. After about three weeks, he applied for a job with DMI in order to get assigned to a location closer to his home in Ascension Parish. DMI hired him as a pipefitter and sent him back to the Motiva plant. De-latte stated he did not have to do any pipefitting duties there, because the employer was waiting for some pipe to come in. He helped the carpenters by doing things such as holding stakes for them to shoot grades, handing them tools, helping them measure, or holding chalk lines.

Delatte admitted that he gave a medical statement to each of his [ (¡subsequent employers and did not admit the December 2006 accident on any of the documents he completed for Jacobs or DMI. He explained that if he had done so, he would not have gotten a job, and he needed the money. He said he knew they would not hire him if he mentioned the recent back injury, because he had seen it happen with other employees.

Delatte said that he tried to deal with the pain on his own. But by March 19, 2007, he was experiencing increasing pain in his lower back and radiating pain down his right leg, so he decided to see a chiropractor, Phillip L. Smith. Delatte said he told Smith about the work accident and explained that the pain had been steadily increasing since December. However, the paperwork he completed at his first visit does not reflect an accident and indicates he had experienced his complaint for “days.” The first visit consisted of a consultation and x-rays, but no treatments. The next morning, Delatte was in extreme pain when he woke up, and could barely sit, walk, or stand. He returned to Smith, who immediately called an ambulance and sent him to the emergency room at St. Elizabeth Hospital. His right hip was x-rayed, and he was given pain medication. On Delatte’s next visit, Smith ordered an MRI. The MRI showed a problem with Delatte’s L4-5 disc, and Smith recommended he see a neurosurgeon.

Delatte saw Dr. Corsten on April 10, 2007. Delatte said the doctor looked at his MRI, gave him a physical examination, and recommended physical therapy and a steroid shot. He also told him he should not return to work and prescribed a pain medication, Percocet. Delatte could not afford the treatments recommended by Dr. Cor-sten and Pala refused to pay for them, so he continued chiropractic treatments with Smith. Other than the first two visits to Dr. Holmes while he was working for Pala, he paid all of his medical bills out of his own resources, including obtaining a loan.

Patrick Banks testified that he met De-latte when they were both working for Pala at the Motiva plant, and worked with him on several jobs. When |7Pelatte was injured, Banks was standing at the bottom of the scaffold on which he and the operator were working to free the stuck valve. Banks said that the way they had to use the valve handle opener, it had a lot of pressure on it. After they had tried several times, Delatte told Banks he was feeling discomfort in his back and asked him to help the operator open the valve. In response to a question from the court, Banks said, “I could just see the expression on his face [was] that something changed, like he hurt himself.” Banks could not open the valve either, due to the pressure. He and Delatte both gave statements about Delatte’s injury to the safety manager.

Banks said he saw Delatte every day at work after the accident, and that he had “been complaining about his back ever since the incident.” Banks also testified that he could tell by Delatte’s facial expressions that he was always in pain while they worked, even though Delatte was on light duty and did not do anything strenuous. This condition continued until they were both laid off. He and Delatte were both hired by Jacobs at the same time to work a turnaround at ExxonMobil. That job lasted three to four weeks, and he saw Delatte every day. Again, Delatte always had a look of pain in his face, and Banks said he “could see he was just hurting. And he always would complain about it.” At Jacobs, there were a lot of workers working in one area, so Delatte did not have to do anything that might put a strain on his back. Banks also said that he would help him all the time. If Delatte had a problem with a procedure that was too strenuous for him, Banks and other people on the crew would help him. He said he seriously believed Delatte was hurt. They had not worked together since February 2007, and did not have much contact, except that Banks would call De-latte about once every other month to check on him.

Delatte’s medical records support his description of the sequence of events following his accident. On his first visit to Smith, he reported that his major complaint of lower back pain on the right side was severe and constant, and that he had been experiencing this for “days.” Smith’s records show that |sDelatte had weekly chiropractic treatments for right low back pain and burning pain in his right leg. The pain would subside for a while, then flare up again, and, although his condition improved, it was never completely resolved.

The St. Elizabeth Hospital records show that Delatte was brought to the emergency room by ambulance on March 20, 2007, with complaints of severe and constant pain in his right hip and leg. X-rays were taken and he was given an injection of pain medication, including morphine, phener-gan, toradol, and norflex. He was discharged with prescriptions for Percocet, Flexeril, and Motrin, and told to follow up with his personal physician.

Dr. Corsten’s medical records include a summary of his findings after Delatte’s first visit on April 10, 2007, stating that he “has radicular symptoms due to a small herniated disc at L4-5. The patient has sensory loss in the L4 dermatome and he has what appears to be a foraminal disc rupture causing nerve root impingement on the right side.” In the history of present illness, Dr. Corsten noted that Delatte “states he has had these symptoms since December 2006 when he was injured at work by pulling on a lever while pipe fitting. He then went to a medical examiner at work, but the pain has since continued.” Dr. Corsten’s notes state that he “recommended a course of pelvic traction as well as a transforaminal epidural steroid injection at L4-5. Should these more conservative means not be successful, a hemi-laminectomy and discectomy is certainly an option.” He prescribed Percocet for pain. In a progress note on May 3, 2007, Dr. Corsten noted Delatte’s inability to work, along with a problem he was experiencing having his treatments approved under workers’ compensation. In August, the progress note states Delatte “is not able to work at this time due to the amount of pain that he is in, and it is likely that this focal disc herniation is related to the injury which he suffered at work when he describes pulling on a lever to loosen a valve, with immediate onset of symptoms of pain radiating into his right leg.” In his deposition, Dr. Corsten was asked whether his opinion that Delatte’s condition was caused by the workjrelated,, incident would change if he knew that Delatte had continued working for Jacobs and for DMI after the incident and had completed forms saying he had no recent injury and/or that his condition was not work related. Dr. Cor-sten said his opinion would not change, explaining:

It sounds to me like he got laid off from his job. In order to get another job — I don’t think they would hire him as a pipefitter if he said that he had a herniated disc and was being treated for it. So they would have denied him work. So he said, [“]No, I don’t have any problems right now.[”] He just wanted a job to support himself and support his family. When that job didn’t work out, he made a similar decision with his other employer that-was he saying something dishonest, perhaps; but he was just trying to get gainful employment....
⅝ ⅜ ⅜
But like you said, he went to see a chiropractor because he wanted somebody to help with the pain. It sounds to me like he was trying to avoid surgery on his back, which is a very common thing. Many patients don’t want to have surgery. Again, I don’t think that has bearing on the fact, in terms of truthfulness of what he told me, that an injury at work caused this disc to herniate. That is my opinion.

Based on our review of the evidence, we find no error in the WCJ’s conclusion that Delatte proved that before the accident, he did not have any disabling symptoms and was able to perform his normal job duties as a pipefitter without any difficulty. He experienced lower back pain immediately while pulling on the lever at work and, although he continued to work for Pala and other employers, he self-limited his activities and continued to have significant back pain. He tried to deal with the pain on his own, hoping it would eventually subside, but it did not. Instead, it increased and began radiating down his right leg. There is no evidence of any intervening trauma that might have caused his continued lower back symptoms. An MRI taken on March 29, 2007, showed that at the L4-5 level, Delatte had “[m]ild asymmetric to the right disc bulging. Mild facet arthrosis. Severe right and moderate left neural foraminal narrowing.” Dr. Corsten indicated that he firmly believed Delatte’s back problem was causally related to the accident and that he should not continue to work in pain. Moreover, the WCJ found Delatte’s testimony was credible concerning his failure to disclose the injury to subsequent employers 11ftfor fear that he would not be hired. We find no error in the WCJ’s conclusion that Delatte met his burden of proof that the accident at work caused his lower back problems. The WCJ had considerable evidence to support that conclusion, and the record as a whole does not show that her decision was manifestly erroneous.

TEMPORARY TOTAL DISABILITY BENEFITS

Delatte seeks additional total temporary disability benefits from March 19, 2007, through May 2, 2007, claiming he was unable to work during that time period. This period corresponds to his first visit to the chiropractor and continues through the time when Dr. Corsten diagnosed him as unable to work due to pain.

An employee seeking temporary total disability benefits (TTDs) in accordance with LSA-R.S. 23:1221(l)(c) must prove by clear and convincing evidence that he is physically unable to engage in any gainful occupation, whether or not the same type of work he was engaged in at the time of injury. Alexander v. Sanderson Farms. Inc., 08-2225 (La.App. 1st Cir.5/8/09), 17 So.3d 5, 10. Clear and convincing proof has been defined as an intermediate standard falling somewhere between the ordinary “preponderance of the evidence” civil standard and the “beyond reasonable doubt” criminal standard. Clear and convincing proof requires objective medical evidence of the disabling condition causing the employee’s inability to engage in any employment. The claimant must provide objective, expert testimony as to his medical condition, symptoms, pain, and treatment, in addition to personal testimony, in order to meet this standard. The factual finding of whether a claimant is entitled to TTDs is subject to the manifest error or clearly wrong standard of appellate review. Roussell v. St. Tammany Parish Sch. Bd., 04-2622 (La.App. 1st Cir.8/23/06), 943 So.2d 449, 457-58, writ not considered, 06-2362 (La.1/8/07), 948 So.2d 116.

In his brief to this court, Delatte claims that on his first visit to his Inchiropractor on March 19, 2007, he was given an excuse not to return to work until March 27, and on March 28, he was given an excuse from work until April 5, 2007. However, Smith’s records do not include copies of these work excuses, nor do his records indicate that Delatte was unable to continue working due to his condition. Dr. Con-sten did not put him on work disability status until his second visit on May 3, 2007. There is no evidence that he was unable to engage in any gainful occupation for the period from March 19 through May 2, 2007. Therefore, we find no merit in Delatte’s request for additional TTDs.

PENALTIES AND ATTORNEY FEES

Delatte also seeks penalties and attorney fees for Pala’s failure to pay compensation and medical benefits. He argues that when he made his claim for benefits, Pala knew about his work-related injury and had no factual or medical basis to refuse his request.

Louisiana Revised Statute 23:1201(F) covers situations where the employer fails to commence payment of compensation benefits timely, fails to pay continued installments timely, or fails to pay medical benefits timely. Roussell, 943 So.2d at 461. An employer’s failure to authorize a necessary medical procedure is deemed to be a failure to furnish the benefits required by LSA-R.S. 23:1203, and the failure to authorize such treatment subjects the employer to the sanctions of LSA-R.S. 23:1201(F). Authement v. Shappert Eng’g, 02-1631 (La.2/25/03), 840 So.2d 1181, 1186. Under the applicable statutory provisions of Subsection 1201(F), penalties and attorney fees are recoverable unless the claims are reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control. A claim is reasonably controverted when the employer has sufficient factual and/or medical information to counter evidence presented by the claimant. Brown v. Texas-LA Cartage. Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890. The defendant must have some valid reason or evidence upon which |1gto base his denial or non-payment of benefits. Sharp v. St. Tammany Marine & Powersports, 08-1992 (La.App. 1st Cir.9/10/09), 23 So.3d 347, 351-52. The employer or compensation insurer has a duty to investigate and make every reasonable effort to assemble and assess factual and medical information in order to ascertain whether the claim was compensable before denying benefits. Parfait v. Gulf Island Fabrication, Inc., 97-2104 (La.App. 1st Cir.1/6/99), 733 So.2d 11, 25.

The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers’ compensation action is essentially a question of fact. Factual findings are subject to the manifest error or clearly wrong standard of review. James v. A & B Builders, 09-0781 (La.App. 1st Cir.10/23/09), 29 So.3d 541, 546.

The evidence shows that Pala knew that Delatte had injured his back while working on December 6, 2006, and that it paid for two visits to Dr. Holmes for that injury. Delatte continued working for Pala until he was laid off in mid-January 2007. Dr. Corsteh’s notes from Delatte’s April 10, 2007 visit indicate, “PN waiting to see if this will be a w/c case.” Pala filed an employer’s report of injury with the Office of Workers’ Compensation on April 23, 2007, showing that on December 6, 2006, Delatte “was assisting another [employee] with turning a [valve] handle when he complained of lower back pain.” Delatte’s personal calendar shows that he discussed his claim with a Zurich representative on April 26, 2007. Zurich requested medical records from Dr. Corsten on April 30, 2007. On May 3, 2007, Dr. Corsten’s progress note states, “Apparently, the patient is having some trouble with his workmen’s compensation in terms of getting his treatments approved.” Delatte testified that Pala never approved or paid for the medical treatments recommended by his doctors.

Pala and Zurich presented no evidence that they made any investigation into De-latte’s medical condition before denying benefits; therefore, there was |lsnothing for the WO to consider and nothing in the record for this court to review. The record also does not show when Pala or Zurich received any of Delatte’s medical or work records. Considering the record as a whole, it is clear that Pala and Zurich were on notice that Delatte had suffered an on-the-job injury and that he and his doctor believed his continuing back problems were caused by that incident. They provided no evidence of their investigatory reasons for denying his claim. Therefore, the WCJ’s denial of penalties and attorney fees is manifest error. See Elswick v. Highway Transport, 96-0014 (La.App. 1st Cir.9/27/96), 680 So.2d 1364, 1370.

The penalty for each disputed claim shall be an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim. However, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. See LSA-R.S. 23:1201(F) and 1201(F)(2). Because a penalty of $50 per day for the time period involved would exceed the statutory cap of $2000 for each claim, we will assess a penalty of $2000 for the failure to pay compensation and medical benefits. The judgment will be amended accordingly.

Notwithstanding the fact that more than one violation in this Section which provides for an award of attorney fees may be applicable, only one reasonable attorney fee may be awarded against the employer or insurer in connection with any hearing on the merits of any disputed claim filed pursuant to this Section. LSA-R.S. 23:1201(J). When attorney fees are awarded in a workers’ compensation case, they are deemed to be a penalty, and the value of the attorney’s fees need not be proven. Insurance Co. of North America v. Labit, 99-2448 and 2449 (La.App. 1st Cir.11/15/00), 772 So.2d 385, 389. Proof of the value of an attorney’s services is not necessary where the services are evident from the record and/or are rendered under the supervision of the court. Richard v. Broussard, 482 So.2d 729, 734 (La.App. 1st Cir.1985), aff'd, 495 So.2d 1291 (La.1986). The court is allowed to call upon its own experience and expertise in determining the amount of time and effort that a lawyer has put into the preparation of a case. Bacon v. Transp. Serv. Co., 01-1913 (La.App. 1st Cir.10/2/02), 836 So.2d 158, 162. Factors to be considered in the imposition of reasonable attorney fees in workers’ compensation cases include the degree of skill and work involved in the case, the amount of the claim, the amount recovered, and the amount of time devoted to the case. Russell v. Regency Hosp. of Covington, LLC, 08-0538 (La.App. 1st Cir.11/14/08), 998 So.2d 301, 306. On awards of penalties and attorney fees, legal interest is due from the date of judgment until paid. Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382, 1389.

Delatte’s attorney litigated his claims through discovery, including Dr. Corsten’s deposition, and presented them clearly in-briefs and evidence submitted to the WO. However, the legal issues were not complex and the hearing before the WCJ included only the testimony of Delatte and Banks. The attorney was successful in obtaining compensation and medical benefits for Delatte. Based on these considerations, we will amend the WCJ’s judgment to award $1000 as reasonable attorney fees in this matter.

CONCLUSION

The judgment of February 10, 2009, is amended to order Pala and Zurich to pay $2000 in penalties and $1000 in attorney fees, plus interest on these amounts from the date of this judgment until paid. In all other respects, the WCJ’s judgment is affirmed.

AMENDED AND AFFIRMED AS AMENDED.

McDONALD, j., dissents on the award of attorney fees and would affirm the Workers’ Compensation Judges judgment in whole.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Ali FINI d/b/a LA Tiger Express v. ALCOHOLIC BEVERAGE CONTROL BOARD FOR the CITY OF BATON ROUGE and Parish of East Baton Rouge.
    No. 2009 CA 0854.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2010.

      Thomas M. Lockwood, A. Gregory Rome, Lockwood & Rome, L.L.C., Baton Rouge, LA, for Appellee, Ali Fini d/b/a LA Tiger Express.
    Mary Roper, Parish Attorney, Gwendolyn K. Brown, Tedrick K. Knightshead, Assistant Parish Attorneys, Baton Rouge, LA, for Appellant, Alcoholic Beverage Control Board for the City of Baton Rouge and Parish of East Baton Rouge.
    Before PARRO, KUHN, and McDonald, jj.
   PARRO, J.

IsA local governmental authority appeals the judgment of a district court that reversed its decision and ordered that it issue Class B beer and liquor permits to the petitioner/applicant. For the following reasons, the judgment is set aside, and the matter is remanded to the district court.

Factual Background and Procedural History

Ali Fini (Fini) owned a convenience store known as LA Tiger Express (Tiger Express) located at 300 Lee Drive in Baton Rouge. On March 28, 2008, Fini filed a notice-of-intent application with the Office of Alcoholic Beverage Control (ABC) for the City of Baton Rouge and Parish of East Baton Rouge to obtain Class B beer and liquor permits, which are required to sell alcoholic beverages from the store. A sign was posted at the store by an ABC representative. No complaint or opposition was filed by the public with ABC.

On June 26, 2008, a hearing was conducted by the ABC Board for the City of Baton Rouge and Parish of East Baton Rouge (Board) on Fini’s notice-of-intent application. The Board voted unanimously to deny the application. Fini d/b/a Tiger Express then filed a “Petition for Judicial Review and/or Devolutive Appeal of Administrative Decision” with the district court, seeking reversal of the Board’s final decision and a judgment ordering the Board to issue beer and liquor permits.

Following a hearing on December 15, 2008, the district court reversed the Board’s decision and ordered the Board to issue the Class B beer and liquor permits, for which Fini had applied, upon payment of the required fees. From|sthe February 6, 2009 judgment so ordering, the Board suspensively appealed, contending that the district court erred in failing to hold a trial de novo on Fini’s petition for judicial review, in finding that the Board acted arbitrarily and capriciously in denying Fini’s notice-of-intent application, and in reversing the decision of the Board.

Subsequently, Fini filed in this court a motion to remand to the district court for an evidentiary hearing on the issue of whether the Board, by its post-February 6, 2009 actions, had acquiesced in the district court judgment. Attached to his motion were affidavits by Fini and his attorney, together with two letters. In his motion, Fini alleges that no party will be prejudiced by a remand because no request was made to suspend the briefing schedule and that the prosecution of the appeal would not be delayed. This motion was opposed by the Board.

Discussion

In Fini’s petition for judicial review, he alleged that the Board’s decision was arbitrary, capricious, and unlawful in that he satisfied all of the qualifications and requirements set forth in the local “Wine, Beer, and Liquor Ordinance” (ordinance) as to the alcoholic beverage permits for which he applied, that his notice-of-intent application did not generate a complaint or opposition by any member of the public, and that no evidence of grounds for a denial were presented at the hearing before the Board.

Concerning the appeal of a decision of the Board to the district court, LSA-R.S. 26:106(A), in pertinent part, provides:

Any party aggrieved by a decision ... of the local authorities to withhold a permit may, within ten days of the notification of the decision, take a devolutive appeal to the district court having jurisdiction of the applicant’s or permittee’s place of business, proposed or actual as the case may be. Such appeals shall be filed in the district courts in the same manner as original suits are instituted therein. The appeals shall be tried de novo. |4Either party may amend and supplement his pleadings and additional witnesses may be called and heard....

At the district court hearing on Fini’s petition, counsel for Fini noted:

[Bjefore we get started I believe [counsel for the Board] wants to introduce some records. Rather than continue the hearing I want you to admit them over my objection because I don’t think you can take any further evidence on this matter. It’s not a de novo decision where you can present new evidence, but I want you to take it and then I’ll make some argument on what was actually introduced in case you want to receive it and review it.

Subsequently, the Board introduced its hearing disposition sheets related to two violations by Fini of Section 9 of the ordinance. On July 8, 2005, and January 12, 2006, Fini had been charged with violating regulations that prohibit the sale of alcohol to persons under the age of 21. In connection with a July 8, 2005 violation of Section 9.B of the ordinance, Fini had admitted to the "violation, and the Board had voted on August 11th to suspend his alcohol license for a period of 30 days. A $250 fine was also imposed. A letter dated January 12, 2006, produced by the Board, had charged “Alfi Inc. d/b/a LA Tiger Express, 800 Lee Drive” with violating Section 9.C.1 and C.2 of the ordinance. The pertinent hearing disposition sheet reflects that at a hearing on the January 12, 2006 violations, Fini had admitted that the violations occurred, and the Board had voted on February 23rd to revoke the alcohol license that had been issued to Tiger Express. A $750 fine was imposed against Tiger Express, and a $250 fine was imposed against Fini.

In connection with his argument to the district court in support of his petition for judicial review, Fini offered a recording of the hearing before the Board and a petition circulated to patrons of the store directed to the Board requesting that Tiger Express be allowed to sell alcoholic beverages. This petition contained a seven-page list of patrons’ names, addresses, and phone numbers. In his argument, counsel for Fini referenced a settlement of the 2006 matter that resulted in Fini not selling liquor for two years. He also noted that no evidence had been presented in opposition to his reapplication for a Class B |sbeer and liquor license at the hearing before the Board. Accordingly, he urged that there was no evidence before the Board on which to base its decision to deny the application, even though he acknowledged that, while discussing Fini’s application, one of the Board members commented that every kid in town knows that they can buy alcohol at Fini’s store even if they are under age.

With respect to local retail liquor permits, municipal authorities and parish governing authorities may withhold the issuance of permits in the manner and under the terms and conditions specified in “The Alcoholic Beverage Control Law” (ABC Law). See LSA-R.S. 26:86. The procedure for the determination to issue or withhold a permit is set forth in LSA-R.S. 26:87(A), which, in pertinent part, provides:

The right to determine what persons shall or shall not be licensed under this Chapter shall be exercised in the following manner:
(1) Municipal authorities and parish governing authorities shall, independently of the commissioner, investigate all applications filed with them for local permits, and shall withhold the issuance of a permit where that action is justified under the provisions of this Chapter. The decision to withhold a local permit shall be made within thirty-five calendar days of the filing of the application. Within that period, the withholding authority shall notify the commissioner in writing that it is withholding the permit and give the reason therefor. Upon receipt of this notice, supported by reasons enumerated in or authorized by this Chapter, the commissioner shall withhold issuance of the applicant’s state permit. Within five calendar days after the receipt of the notice from the local authorities, the commissioner shall notify the applicant in writing of the action and shall assign the reasons therefor. Such notice shall be either delivered to the applicant in person or sent to him by registered mail at the business address given in his last application. When so addressed and mailed, it shall be conclusively presumed to have been received by the applicant.

The ABC Law does not require a contradictory hearing by the local governing authority to determine the qualifications of an applicant for a permit. See Barlotta v. Jefferson Parish Council, 212 So.2d 220, 223 (La.App. 4th Cir.1968). Furthermore, we observe that no permit shall be withheld except for causes specified in the ABC Law. See LSA-R.S. 26:94.

An applicant who has been denied a permit may appeal a governing authority’s decision by utilizing the specific procedure provided by law. See LSA-R.S. 26:106(A). If such a procedure is utilized, the appeal “shall be tried de novo” by the district court. Id. (Emphasis added).

At the district court hearing, counsel for Fini urged that the district court’s review of this matter was limited to the existing record. An “appeal de novo” or “de novo review” is “[a]n appeal in which the appellate court uses the trial court’s record but reviews the evidence and law without deference to the trial court’s rulings.” Black’s Law Dictionary, 94 (7th ed.1999). Clearly, LSA-R.S. 26:106(A) envisions more than merely a “de novo review” by the district court. Based on the statutory language, the parties are entitled to have the appeal “tried de novo” before the district court; a “trial de novo” is “[a] new trial on the entire case — that is, on both questions of fact and issues of law — conducted as if there had been no trial in the first instance.” Black’s Law Dictionary at 1512.

In ruling on Fini’s petition for judicial review without affording the parties a trial de novo, we find that the district court misconstrued its role in the appellate process. Based on LSA-R.S. 26:106(A), the appeal is subject to a trial de novo, and such an appeal was to be filed in the district court “in the same manner as original suits are instituted therein.” In light of the district court’s failure to afford the parties this opportunity, it did not consider the evidence submitted by the parties, nor did the district court allow for the introduction of any other evidence that may have been necessary for it to properly review the final decision of the Board.

^Decree

For the foregoing reasons, the judgment of the district court is set aside, and this matter is remanded to the district court for a trial de novo on Fini’s devolutive appeal of the Board’s decision. Costs of this appeal in the total amount of $490.50 are assessed one half to Ali Fini and one half to Alcoholic Beverage Control Board for the City of Baton Rouge and Parish of East Baton Rouge.

SET ASIDE AND REMANDED.

      . See LSA-R.S. 26:77.

      . It is undisputed that the sign posted by ABC remained on the premises in excess of the 15-day period required under the pertinent ordinance.

      .Notably, LSA-R.S. 26:106(A) only authorizes a devolutive appeal to the district court.

      . See LSA-R.S. 26:105.

      . Notably, LSA-R.S. 26:106(B) only authorizes a devolutive appeal to the appellate court of proper jurisdiction.

      . See LSA-R.S. 26:1.

      . See LSA-R.S. 26:80.

      . Accordingly, Fini's motion for remand is moot and is hereby denied. Nonetheless, we again observe that only a devolutive appeal to the appellate court is authorized by LSA-R.S. 26:106(B).

      . The Alcoholic Beverage Control Board’s proportionate share of the costs of this appeal is $245.25.


text:
    SURVEY AMERICA, INC. v. LOUISIANA PROFESSIONAL ENGINEERING and Land Surveying Board.
    No. 2009 CA 0286.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2010.

      Myron A. Walker, Jr., William H. Burris, Seale, Smith, Zuber & Barnette, Baton Rouge, LA, for Plaintiff-Appellee Survey America, Inc.
    Celia R. Cangelosi, Baton Rouge, LA, for Defendant-Appellant Louisiana Professional Engineering and Land Surveying Board.
    Before: PARRO, KUHN, and McDonald, jj.
   PARRO, J.

IgThe defendant appeals a judgment rendered by the district court on judicial review in favor of the plaintiff, reversing and vacating an administrative decision by the defendant in an enforcement action against the plaintiff. For the following reasons, we affirm the judgment of the district court.

Factual Background and Procedural History

In 2006, Survey America, Inc., a foreign corporation with its principal place of business in Evansville, Indiana, sent facsimile transmissions to four registered Louisiana surveying firms soliciting price quotes for land survey work needed to be performed in Louisiana. The firms that received the faxes were Louisiana businesses licensed to perform land surveying work in Louisiana. An employee of one of those firms submitted a complaint against Survey America with the Louisiana Professional Engineering and Land Surveying Board (the Board), of which he was a member. The complainant reported that Survey America was not a licensed land surveyor and that by using the symbol of the tripod on its letterhead and using the word “survey” in its business name, Survey America had violated LSA-R.S. 37:700(A)(1) through (7).

Survey America received notice that the Board was considering preferring charges against the corporation for the alleged violations, but at the request of Survey America, an informal conference by telephone was conducted. However, the parties were unable to resolve the matter. Subsequently, by a unanimous vote on September 17, 2007, the Board preferred charges against Survey America pursuant to LSA-R.S. 37:700(D)(1), involving alleged violations of LSA-R.S. 37:681 and 700(A)(1), (7), and (9).

After a hearing on January 7, 2008, the Board found as a fact that Survey America had never been licensed with the Board as a professional land surveying firm and, therefore, was not authorized to practice and/or offer to practice land surveying in Louisiana. The Board also made the following findings of fact: in 2006, Survey America [¡¡sent faxes to licensed firms in Louisiana soliciting price quotes for the performance of land surveying work in Louisiana; the faxes contained Survey America’s company name, along with a survey tripod icon; and two of the firms responded to the faxes from Survey America, submitted price quotes, were retained by Survey America, performed the work requested, invoiced Survey America for the work, and were paid by Survey America.

Based on Survey America’s actions, the Board concluded that it had jurisdiction, and, relying on LSA-R.S. 37:682(13), which defines the term “practice of land surveying,” the Board concluded that Survey America had practiced and/or offered to practice land surveying in Louisiana. The Board found that Survey America had violated LSA-R.S. 37:681 and 700(A)(1) by practicing and/or offering to practice land surveying in Louisiana and using in connection with its name and otherwise assuming, using, and advertising a description tending to convey the impression that it was licensed in Louisiana and able to perform land surveying work in Louisiana. The Board found that by using a modification or derivative of the words “land surveyor” or “land surveying” in its name or form of business or activity in Louisiana, Survey America violated LSA-R.S. 37:700(A)(7). By using a derivative of the word “surveying” in its firm name in Louisiana, Survey America was considered by the Board to have offered to provide professional services in Louisiana in violation of LSA-R.S. 37:700(A)(9), by virtue of LAC 46:LXI.2301(B)(1). Accordingly, the Board sustained the charges against Survey America and ordered it to pay a fine of $5,000, as well as $6,087.03 in costs.

From the Board’s decision, Survey America filed a petition for judicial review with the district court. After reviewing the administrative record, the district court found that Survey America was not attempting in any way to practice land surveying in Louisiana, or to advertise or to convey that it was a professional land surveying firm. It observed that the faxes clearly indicated that Survey America was seeking the submission of bids for the services of a licensed Louisiana surveyor to perform survey work that it needed to have performed in Louisiana. Louisiana surveyors were [^subsequently hired by Survey America to perform the work. Accordingly, the district court found that the Board clearly abused its discretion in finding that Survey America violated licensing laws, that the Board was without substantial justification in its findings, and that the Board’s actions were arbitrary and capricious and clearly wrong. Judgment was entered in favor of Survey America, reversing and vacating the Board’s decision. The Board appeals, contending that the district court erred in reversing the Board’s decision in that the record supports that Survey America violated LSA-R.S. 37:681 and LSA-R.S. 37:700(A)(1), (7), and (9) (specifically LAC 46:LXI.2301(B)(1)).

Discussion

In order to safeguard life, health, and property and to promote the public welfare, any individual in either a public or private capacity, or foreign or domestic firm, practicing or offering to practice professional land surveying, shall be required to submit evidence that he is qualified to so practice and shall be licensed as hereinafter provided. LSA-R.S. 37:681. It shall be unlawful for any person to practice or to offer to practice in this state land surveying, as defined in LSA-R.S. 37:682(13), or to use in connection with his name or otherwise assume, use, or advertise any title or description tending to convey the impression that he is a professional land surveyor, unless such person has been duly licensed under the provisions of LSA-R.S. 37:681 through 703. LSA-R.S. 37:681.

“Practice of land surveying” shall include the measuring of areas, land surfaces, streams, bodies of water, and swamps for correct determination and description, for the establishment, reestablishment, ascertainment, or description of land boundaries, corners, divisions, distances, and directions, the plotting and monumenting of lands and ^subdivisions thereof, and mapping and topographical work. LSA-R.S. 37:682(18)(a). A person shall be construed to practice or offer to practice land surveying who engages in land surveying and who by verbal claim, sign, advertisement, letterhead, card, or in any other way represents himself to be a land surveyor, or who represents himself as able to perform or who does perform any land surveying service or work, or any other service designated by the practitioner which is recognized as land surveying. LSA-R.S. 37:682(13)(b).

The Board shall have the power to make, adopt, amend, and promulgate all bylaws, rules, and regulations not inconsistent with the constitution and laws of this state, which may be reasonably necessary for the proper performance of its duties, and the regulation of the proceedings before it. LSA-R.S. 37:688(A). The Board shall adopt, promulgate, and enforce rules and regulations, which may be reasonably necessary for the protection of the public and proper administration of LSA-R.S. 37:681 through 703. LSA-R.S. 37:688(0(1). These rules and regulations shall be binding on all applicants, land surveyor interns, and professional land surveyors, including all firms which must hold a license. Id. The Board may establish, adopt, promulgate, and publish rules and regulations concerning the procurement of land surveying services. LSA-R.S. 37:688(0(2).

Concerning enforcement action against a non-licensee or non-certificate holder, LSA-R.S. 37:700 provides, in pertinent part:

A.The board shall have the power to take enforcement action against any non-licensee or non-certificate holder found by the board to be guilty of any of the following acts or offenses:
(1) Practicing or offering to practice engineering or land surveying in the state of Louisiana without being licensed in accordance with the provisions of this Chapter.
(7) The use by any person of the words “engineer” or “engineering” or “land surveyor” or “land surveying” or any modification or derivative thereof in its name or form of business or activity except as licensed under this Chapter or in the pursuit of activities exempted by this [ (¡Chapter.
(9) Violation of any provisions of this Chapter or any rules or regulations adopted and promulgated by the board.
B. For purposes of this Chapter, the term “enforcement action” shall include but not be limited to a fine in an amount not to exceed five thousand dollars per violation.
C. The board shall have the power to take enforcement action against a firm if one or more of its officers, directors, managers, employees, agents, or representatives is found by the board to be guilty of any of the acts or offenses listed in Subsection A of this Section.
* ⅜ *
J. In addition to any other action, the board may assess all reasonable costs incurred in connection with an enforcement proceeding, including investigators’, stenographers’, and attorneys’ fees in conjunction with any other enforcement action taken. The assessment of costs may be considered enforcement action.

Pursuant to its authority under LSA-R.S. 37:688, the Board promulgated LAC 46:LXI.2301(B), which in pertinent part provides:

A firm must be licensed with the board before it may provide or offer to provide professional services in the state of Louisiana.
1. A firm which has in its title the word engineering or surveying or any derivative thereof shall be construed to be offering to provide professional services and therefore must be licensed with the board before doing business in the state of Louisiana, unless it has in its title modifying or explanatory words which would, in their ordinary meaning, negate the inference of the professional practice of engineering or land surveying.

Based on the actions of Survey America, it seems to be undisputed, and the district court found, that Survey America was not practicing or offering to practice professional land surveying in Louisiana as contemplated by the applicable statutes. Instead, through its requests for a price quote, which the Board sought to punish, Survey America sought to procure the services of a licensed land surveyor to perform land surveying work in Louisiana. By so doing, it was attempting to comply with the requirements of LSA-R.S. 37:681. Therefore, we agree with the district court and find no violation of LSA-R.S. 37:681 or 700(A)(1).

What is disputed by the Board is whether Survey America was trying “to use in 17connection with [its] name or otherwise assume, use, or advertise any title or description tending to convey the impression that [it was] ... a professional land surveyor.” (Emphasis added); see LSA-R.S. 37:681. Even though the word “survey” is used in the name of the business and a survey tripod is used to form the letter “A” in “America,” such use does not tend to convey the impression that Survey America was a professional “land surveyor” or a “land surveying” firm practicing or offering to practice professional land surveying in Louisiana. Therefore, we also agree with the district court that Survey America did not use in connection with its name or otherwise assume, use, or advertise any title or description tending to convey the impression that it was a professional land surveying firm for purposes of obtaining for itself land surveying work in Louisiana. These findings are clearly supported by the record in this case. Accordingly, we find no violation of LSA-R.S. 37:700(A)(7).

With respect to a violation of LSA-R.S. 37:700(A)(9), the Board urges that Survey America’s use of the term “survey” in its title is in violation of LAC 46:LXI.2301(B)(1). However, we read this regulation as prohibiting a land surveyor from doing business as a professional land surveyor in Louisiana until a license has been obtained from the Board. To the extent that LAC 46:LXI.2301(B)(1) may be construed to prohibit a land surveyor, who uses the term “surveying or any derivative thereof,” from conducting any kind of business in Louisiana without a land surveyor license, we find that this regulation is inconsistent with the laws of this state. It would be absurd to think that an out-of-state land surveyor or land surveying firm would have to obtain a Louisiana license merely to procure the services of a land surveyor licensed in Louisiana. Furthermore, although the Board is authorized by LSA-R.S. 37:688(0(2) to adopt regulations concerning the procurement of land surveying services, we are unable to find any such regulation that would prohibit Survey America, based on its name, from procuring the services of a Louisiana licensed professional land surveyor to perform work for itself or one of its clients. Accordingly, we find no violation of LSA-R.S. |S37:700(A)(9).

Finding no violation of the laws and regulation in question, we find that the district court was acting within its appellate authority in reversing the final decision of the Board. See LSA-R.S. 49:964(G).

Decree

For the foregoing reasons, we affirm the judgment of the district court on judicial review. Costs of this appeal in the amount of $1,962.06 are assessed to the Louisiana Professional Engineering and Land Surveying Board.

AFFIRMED.

      . Louisiana Revised Statute 37:700(A)(9) provides that the violation of any rules or regulations adopted and promulgated by the Board are considered acts or offenses. The specific rule or regulation alleged to have been violated was LAC 46:LXI.2301(B)(1), which prohibits the practicing and/or offering to practice land surveying and the use of the word "surveying” or any derivative thereof in a firm’s name or form of business or activity in Louisiana without proper licensure.

      . See LSA-R.S. 37:700(1); LSA-R.S. 49:964.

      . Survey America’s request for attorney fees, costs, and publication of correction in the Board’s official journal was deferred.

      . See LSA-R.S. 49:965.

      . When reviewing a final decision or order of an agency in an adjudication proceeding, the district court functions as an appellate court. Once a final judgment is rendered by the district court, an aggrieved party may seek review of same by appeal to the appropriate appellate court. On review of the district court's judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Blanchard v. Allstate Ins. Co., 99-2460 (La.App. 1st Cir. 10/18/00), 774 So.2d 1002, 1004, writ denied, 01-0285 (La.3/23/01), 787 So.2d 997; see LSA-R.S. 49:964(G).

      . The duty of the Board shall be to administer the provisions of LSA-R.S. 37:681 through 703. See LSA-R.S. 37:683(A)(1).

      . We further note that the Board’s duty is to enforce rules and regulations, which may be reasonably necessary for the protection of the public and for proper administration of LSA-R.S. 37:681 et seq. See LSA-R.S. 37:688(A). We fail to see how the enforcement of LSA-R.S. 37:700(A)(9) under the facts of this case serves either of these functions.

      . In so ruling, we do not address the issue of jurisdiction over the person of Survey America.

      . This court must review the district court's judgment in light of the standards set forth in LSA-R.S. 49:964(G). The district court may reverse or modify the agency decision if substantial rights of the appellant are prejudiced because the administrative findings, inferenees, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency's statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary, capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion; or (6) not supported and sustainable by a preponderance of evidence as determined by the reviewing court. LSA-R.S. 49:964(G); Pacificorp Capital, Inc. v. State, Through Div. of Admin., 92-1729 (La.App. 1st Cir.8/11/94), 647 So.2d 1122, 1125, writ denied, 94-2315 (La.11/18/94), 646 So.2d 387.


author: HUGHES, J.

text:
    TRAVELERS INDEMNITY COMPANY v. STATE OF LOUISIANA WORKERS’ COMPENSATION Second INJURY BOARD.
    No. 2009 CA 1332.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.

      Lawrence B. Friedman, Jennifer M. Sullivan, Metairie, LA, for Plaintiff/Appellant.
    Travelers Indemnity Company, James D. “Buddy” Caldwell, Attorney General, Karl L. Scott, Assistant Attorney General, Baton Rouge, LA, for Defendant/Appellee LA Workers’ Compensation Second Injury Board.
    Before WHIPPLE, HUGHES, and WELCH, JJ.
   HUGHES, J.

| gThis is an appeal from a judgment dismissing as prescribed an appeal from the Louisiana Workers’ Compensation Second Injury Board (“Board”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In January of 2007 Travelers Indemnity Company (“Travelers”) filed a claim with the Board, based on benefits paid to its insured’s (Pediatric Services of America) employee, Mark Callahan, for an injury sustained in March of 2006 to his lower back. Mr. Callahan had suffered a back injury eight years previously. Travelers’ claim was filed by its representative, Elaine Landauer.

After filing of the claim, attorney Brad Price (who later filed the petition for review on behalf of Travelers in the district court) corresponded with the Board, via Program Compliance Officer Michelle Sumrall, on several matters prior to hearing. On the date of the Board hearing on Travelers’ claim, Mr. Price arrived early and was informed by Ms. Sumrall that Travelers’ claim was going to be denied during the hearing that was scheduled for later in the day. Mr. Price then waived his appearance at the hearing. The Board thereafter mailed (on September 7, 2007) notice of its September 6, 2007 decision denying Travelers’ claim to Travelers’ representative, Elaine Landauer. The notice was received in Travelers’ New Orleans office on September 11, 2007. No notice of the Board’s decision was sent to Mr. Price.

On October 29, 2007 Mr. Price filed an appeal of the Board decision on behalf of Travelers in the district court. On January 13, 2009 the Board filed an exception of prescription contending that Travelers failed to file its appeal within the thirty-day prescriptive period provided by LSA-R.S. |S23:1378(E). The district court sustained the objection and dismissed Travelers’ petition for review. Travelers has appealed to this court contending that the district court erred in dismissing its suit on the basis of prescription for the following reasons: (1) the Board violated the principle of mandate by failing to give proper notice to Travelers’ agent/representative; (2) the Board’s exception of prescription is barred by the doctrine of contra non valentem; (3) the Board’s participation in discovery was a tacit renunciation of any prescription defense; and (4) equity and lack of prejudice demand a denial of the Board’s exception of prescription.

LAW AND ANALYSIS

When an employee is injured while in the course and scope of employment, an employer or its insurer, generally, must pay compensation benefits to the employee pursuant to LSA-R.S. 23:1031, et seq. However, to encourage the employment of individuals with preexisting disabilities, the Workers’ Compensation Second Injury Fund (“Fund”) was established, in accordance with LSA-R.S. 23:1371, et seq. When an employer knowingly hires or retains in its employment an employee with a preexisting disability and that employee becomes injured while in the course and scope of his latest employment, though an employer must pay compensation benefits to the employee, it can apply to the Fund for reimbursement of benefits paid to the employee, pursuant to LSA-R.S. 23:1371 and LSA-R.S. 23:1378. Home Depot v. State Workers’ Compensation Second Injury Board, 2005-0674, p. 3 (La.App. 1 Cir. 3/29/06), 934 So.2d 125, 126-27.

The procedure for applying for reimbursement is set forth in LSA-R.S. 23:1378. Initially, notice to the Board by the employer or its insurer is required. The Board may hold hearings to determine if the employer is |4entitled to reimbursement from the Fund. The Board is to provide written notice of its decision to all “parties.” Appellate review of a decision of the Board is governed by LSA-R.S. 23:1378(E). Id.

The notice provision of LSA-R.S. 23:1378(E) specifically states: “Written notice of the decision of the board shall be given to all parties to the hearing and the representatives designated by the party on the reimbursement form submitted to the board.” (Emphasis added.)

The first issue to be resolved is who are the “parties” entitled to notice. Guidance as to the interpretation of words and phrases contained in the Revised Statutes is provided by LSA-R.S. 1:3, which states:

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.
The word “shall” is mandatory and the word “may” is permissive.

Title 40 of the Louisiana Administrative Code, Part III, § 105 provides definitions applicable to the Board, and states, in pertinent part: “By reference, all of the definitions set forth and contained in R.S. 49:950 through 49:966 [the Louisiana Administrative Procedure Act], inclusive, are incorporated herein....” The term “party” is defined by LSA-R.S. 49:951(4) as meaning “each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party.” As |,^provided in the Louisiana Code of Civil Procedure, a “party” is a plaintiff or a defendant in a lawsuit, as well as anyone joined by incidental demand. See LSA-C.C.P. arts. 641-821. Thus, we conclude the language of LSA-R.S. 23:1378(E) is clear that notice of the Board’s decision in an action “shall” be given to all “parties,” i.e. to all plaintiffs, defendants, and those joined by incidental demand.

Notice is further required by LSA-R.S. 23:1378(E) to be given to “the representatives designated by the party on the reimbursement form submitted to the board.” However, since the only forms filed by Travelers with the Board, which are contained in the record on appeal, designate Elaine Landauer as Traveler’s representative, we must conclude that the Board fulfilled the requirements of LSA-R.S. 23:1378(E) in providing notice of its decision only to Ms. Landauer.

We further note that LSA-R.S. 49:958 of the Louisiana Administrative Procedure Act, made applicable to the Board by Title 40 of the Louisiana Administrative Code, Part III, § 105 (as noted hereinabove), provides as follows:

A final decision or order adverse to a party in an adjudication proceeding shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding. Parties shall be notified either personally or by mail of any decision or order. Upon request, a copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record. The parties by written stipulation may waive, and the agency in the event there is no contest may eliminate, compliance with this Section. [Emphasis added.]

| fiWhile LSA-R.S. 49:958 requires “parties” be notified of agency decision “either personally or by mail,” an attorney of record must be notified of the decision only “upon request.”

We have examined the correspondence submitted to the Board by Mr. Price, appearing in the record on appeal, and have found no such request. In correspondence dated May 25, 2007, Mr. Price stated to the Board that he had been retained “on behalf of the employer, Pediatric Services of America, Inc., to represent its interest in the captioned matter.” Counsel further requested a formal hearing and stated that he would “appreciate your notifying me of the date and time of the formal hearing once it has been scheduled.”

First, although Mr. Price filed the petition for review in the district court on behalf of Travelers, his correspondence to the Board did not make his representation of Travelers clear. Secondly, Mr. Price did not request notice of the Board’s decision, only notice of the date and time of hearing. Mr. Price’s subsequent correspondence to the Board (on June 15, 2007, July 25, 2007, and September 4, 2007) dealt only with discovery and evidentiary issues.

Therefore, we find that Mr. Price did not establish that he requested notice of the Board’s decision, and therefore he did not meet the requirements for notice under the laws applicable to the Board.

Travelers further urges on appeal that prescription has been renounced, that the doctrine of contra non valentem prevented running of prescription, and that other equitable considerations required denial of the | ^Board’s plea of prescription. However, these arguments are inapplicable to the failure to timely file an appeal, which is a jurisdictional defect rather than a matter of prescription per se.

The following discussion in Jim & Lu Enterprises, Inc. v. Alcoholic Beverage Control Bd. for the City of Baton Rouge and East Baton Rouge Parish, 99-2907, pp. 4-5 (La.App. 1 Cir. 12/22/00), 778 So.2d 75, 78, illustrates this point:

The question of timeliness of an appeal is jurisdictional and must be considered. McGee v. Jones, 516 So.2d 1222, 1224 (La.App. 2 Cir.1987); Anderson v. City of Baton Rouge, 381 So.2d 842 (La.App. 1 Cir.1980). An appellant’s failure to file a devolutive appeal timely is a jurisdictional defect in that neither the court of appeal nor any other court has the jurisdictional power and authority to reverse, revise, or modify a final judgment after the time for filing a devolu-tive appeal has elapsed. Baton Rouge Bank & Trust Co. v. Coleman, 582 So.2d 191, 192 (La.1991) (emphasis omitted). Accordingly, when an appellant fails to timely file a devolutive appeal from a final judgment, the judgment acquires the authority of the thing adjudged, and the court of appeal has no jurisdiction to alter that judgment. Baton Rouge Bank & Trust Co., id. See also, Starnes v. Asplundh Tree Expert Co., 941647 (La.App. 1 Cir. 10/6/95), 670 So.2d 1242.
A suit to have a liquor license revocation annulled can be considered an appeal, within the contemplation of the statute authorizing a devolutive appeal and trial de novo, notwithstanding a prayer for injunctive relief, where it is clear that the petitioner is aggrieved by a decision of a municipal governing body and desires to have the district court review proceedings which have been held before the board and which led up to the revocation of the permit. Felton v. Alcoholic Bev. Con. Bd. For Baton Rouge, 278 So.2d 136, 137, (La.App. 1 Cir. 5/14/73) discussing Dauenhauer v. City of Gretna, 93 So.2d 27 (La.App.Orl.Cir.1956). [Emphasis omitted.]

Since the failure to timely file an appeal renders a reviewing court without jurisdiction to hear the appeal, the equitable considerations urged by Travelers cannot operate to revive a right to appeal that has expired. Thus, the district court correctly dismissed Travelers’ petition for review.

^CONCLUSION

For the reasons assigned, we affirm the district court judgment favor of Louisiana Workers’ Compensation Second Injury Board, dismissing the petition for review filed by Travelers Indemnity Company. All costs of this appeal are to be borne by Travelers Indemnity Company.

AFFIRMED.

      . The full text of LSA-R.S. 23:1378(E) provides:
      Written notice of the decision of the board shall be given to all parties to the hearing and the representatives designated by the party on the reimbursement form submitted to the board. The decision of the board shall be final; however, an appeal therefrom may be taken by any of the parties within thirty days after the date of the decision of the board. If an appeal is taken, the board shall be made party defendant, and service and citation shall be made in accordance with applicable law upon the attorney general or one of his assistants. The appeal shall be to the Nineteenth Judicial District Court, parish of East Baton Rouge. All appeals in all such cases shall be tried de novo.

      . We note that in contrast to the notice requirements placed on the Board, LSA-C.C.P. art. 1913(A) states, with respect to litigation in the courts of this state: "Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.” (Emphasis added.)


author:
      GUIDRY, J.
      PETTIGREW, J.,

text:
    Joanna BOZARTH, Phyllis Garcia, Cynthia Berges, Stephanie Rosales, Mary Owen, Rachel Curtis v. STATE of Louisiana LSU MEDICAL CENTER/CHABERT MEDICAL CENTER, Dr. Jonah Ezieme, Dr. Joe Johnson, Dr. Mary Eschete, Dr. Daoling Zhang, Dr. Macsino-Bacuta, Dr. Thomas Ferguson, Dr. Donald DeGrange, Dr. Kathy Hebert, Dr. Kenneth Kellum, Dr. Phuong Vo, Dr. Ronald Marts, Dr. John King, Dr. David Sampognaro.
    No. 2009 CA 1393.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.

      Joel P. Loeffelholz, New Orleans, LA, for Plaintiffs/Appellants, Joanna Bozarth, Phyllis Garcia, Cynthia Berges, Stephanie Rosales, Mary Owen, and Rachel Curtis.
    James D. “Buddy” Caldwell, Attorney General, Katherine Wheeler, Assistant Attorney General, Baton Rouge, LA, for Defendants/Appellees, State of Louisiana on behalf of Leonard J. Chabert Medical Center, Dr. Jonah Ezieme and Dr. Joe Johnson.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

12This appeal stems from the dismissal of a medical malpractice action by summary judgment. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 17, 1999, Joanna Bozarth, Phyllis Garcia, Cynthia Berges, Stephanie Rosales, Mary Owen and Rachel Curtis, the wife and daughters of James Philmore Bozarth (collectively “plaintiffs”), filed a petition for damages against the State of Louisiana through the Louisiana State University, Health Care Services Division, Leonard J. Chabert Regional Medical Center, and several doctors employed by the medical center, alleging that Mr. Bozarth died as a result of the named defendants’ failure to properly diagnose and treat Mr. Bozarth and for negligently prescribing medications and discharging Mr. Bozarth under the circumstances. The named defendants filed a dilatory exception raising the objection of prematurity in response to the plaintiffs’ petition, asserting that the petition raised claims of medical malpractice, and as state healthcare providers, the claims had to first be presented to a Medical Review Panel, as required by La. R.S. 40:1299.39, before suit could be instituted. The trial judge sustained the exception, and the plaintiffs’ petition was dismissed without prejudice.

A Medical Review Panel was convened that determined that only the “State of Louisiana, LSU Medical Center, Health Care Services Division” and two of the named physicians, Dr. Jonah Ezieme and Dr. Joe Johnson (hereinafter collectively “LSUMC”), failed to meet the applicable standard of care as charged in the plaintiffs’ petition; however, the Medical Review Panel further determined that “[t]he conduct complained of was not a factor of the resultant damages” claimed by plaintiffs. Following issuance of the Medical Review Panel’s opinion, plaintiffs re-filed their petition for damages on December 2, 2000, and LSUMC filed an answer generally denying liability for plaintiffs’ claims.

| .^Following a period of discovery, LSUMC filed a motion for summary judgment asserting that the plaintiffs would not be able to meet their burden to prove that the established breach of the standard of care caused the damages claimed by the plaintiffs, namely the death of Mr. Bo-zarth. On July 26, 2005, the trial judge granted the motion in part to dismiss the plaintiffs’ claims against the “Chabert Medical Center” and all of the named physician defendants except Drs. Johnson and Ezieme. The trial judge denied the motion for summary judgment as to LSUMC. LSUMC applied for writs to this court and the Louisiana Supreme Court, but writs were denied by both courts.

Approximately a year and a half following the Louisiana Supreme Court’s denial of writs, plaintiffs filed a motion to reset the matter for trial. LSUMC, in turn, filed a motion in limine seeking to exclude the live or affidavit testimony of Cheryl Crochet. In the same pleading, LSUMC also requested that the previously-filed motion for summary judgment be renewed in the event the motion in limine was granted. A hearing on the motion in li-mine and renewed motion for summary judgment was initially set for September 15, 2008, but because the court was closed until that date due to Hurricane Gustav, the matter was continued and a subsequent date set for the hearing was also continued at the request of the parties.

On November 14, 2008, LSUMC filed a motion to reset the motions for a contradictory hearing, and on November 19, 2008, the trial judge signed an order setting the matter for January 16, 2009, at 9:00 a.m. The order included instructions to serve counsel for the plaintiffs with the order.

|4On January 16, 2009, counsel for the plaintiffs did not appear at the hearing, and the trial judge noted that plaintiffs’ counsel had been personally served with notice of the hearing on December 10, 2008. The trial judge then proceeded to consider the evidence and arguments presented by LSUMC in favor of the motions filed. By a judgment signed January 30, 2009, the trial judge rendered judgment granting the motions and dismissed the plaintiffs’ claims against LSUMC. It is from this judgment that the plaintiffs appeal.

ASSIGNMENTS OF ERROR

On appeal, plaintiffs specify the following actions by the trial court as error:

1) Under the circumstances exigent on January 16, 2009, [the trial judge] erred in going forward with the summary judgment hearing.
2) Under the circumstances exigent on January 16, 2009, [the trial judge] erred in allowing any testimony at all, much less that of Dr. Mary Eschete[,] a former defendant herself in the matter and [the trial judge’s] admitted childhood friend who he qualified as an expert and whose testimony was filled with hearsay that went to the merits of the claim far outside the scope of a summary judgment.
3) Under the circumstances exigent on January 16, 2009, [the trial judge] erred in even entertaining [the] second motion for summary judgment as [the trial judge’s] decision of July 25, 2005 denying this exact same motion, which was affirmed by the denial of writs from that decision to [the Louisiana First Circuit Court of Appeal and the Louisiana Supreme Court], was res judicata.
4) Under the circumstances exigent on January 16, 2009, [the trial judge] erred in granting summary judgment.

DISCUSSION

Plaintiffs’ first challenge to the summary judgment is the assertion that the trial judge erred in holding the hearing without the attendance of counsel for the plaintiffs. In their brief, counsel for the plaintiffs asserts that on the date of the hearing, the trial judge’s clerk contacted counsel’s office to inquire if he would be appearing for the hearing. Counsel was meeting with a client from California at the time, and on reviewing his calendar, realized he had scheduled the hearing for the wrong date. Counsel then asked to speak with the trial judge and was allegedly Ifitold that the judge was unavailable, but would call counsel back. When counsel did not hear from the judge, he called the court and allegedly was told the judge was on the bench, and on calling a second time, counsel was told that the judge had ruled on the motions and left for the day. Plaintiffs assert that the trial judge unfairly prejudiced them by going forward with the hearing.

We construe plaintiffs’ account of their counsel’s attempt to contact the trial judge as indicating that an attempt was made to have the hearing on the motions continued, although a continuance was not expressly requested. See Perkins v. Willie, 01-0821, p. 2 (La.App. 1st Cir.2/27/02), 818 So.2d 167, 169. Since none of the peremptory grounds for granting a continuance listed under La. C.C.P. art. 1602 exists, we must consider whether the trial judge abused the discretion granted him under La. C.C.P. art. 1601 in not finding that good grounds existed for continuing the hearing.

At the hearing on the motion in limine and the renewed motion for summary judgment, the following colloquy occurred regarding proceeding with the hearing in the absence of plaintiffs’ counsel:

MS. WHEELER:
Your Honor, Ms. Bergeron did get in touch with [counsel for the plaintiffs] and he was under the impression that the hearing in this matter was set for the 21st.
I don’t know whether the docket reflects that he was served notice of today’s hearing date; but this is the second or third continuance of this case.
I have Dr. Eschete here, away from the hospital, to put on evidence. Even if he thought that the hearing was set for the 21st, I don’t believe that I’ve received an opposition to the motion for summary judgment [that] was filed at least eight days prior to the hearing date.
The only concern I would have is whether he got legitimate notice of today’s hearing.
LTHE COURT:
December 10th, 2008, correct? That’s the service, huh, for today, January 16th.
MINUTE CLERK:
Uh-huh.
THE COURT:
Let’s proceed. I mean, this case has gone on long — This ease is from what, 1999? It’s time to finish it up.
THE COURT:
And let’s just show: This is Docket No. 124974. The record reflects that the plaintiff was served with notice of reassignment of this motion for limine and motion for summary judgment. And he was served December 10th. No opposition has been filed by the plaintiffs attorney. The Court will proceed with the hearing.

A trial court’s ruling regarding a continuance will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. Appellate courts interfere in matters such as control of a trial court’s docket, case management, and determining whether a motion for continuance should be granted only with reluctance and in extreme cases. Perkins, 01-0821 at 2-3, 818 So.2d at 169.

In Porter v. Fulton, 99-1361 (La.App. 5th Cir.6/27/00), 762 So.2d 1272, none of the parties appeared at the hearing on the motion for summary judgment because of a mistaken belief that a motion for continuance filed by the defendants, who were also the movants for summary judgment, had been granted. When the trial court contacted plaintiffs counsel regarding the status of the case on the date of the hearing, plaintiffs counsel informed the trial court of his belief that the matter had been continued. Despite being informed of the misunderstanding, the trial court ruled on the motion based solely on the memorandum filed by the defendants. On appeal, the court considered the fact that no opposition to the motion had been filed by the plaintiffs and found “[t]he trial court had whatever |7material the litigants had chosen to file in order to decide the matter.” Thus, the appellate court concluded that the trial court did not err in deciding the motion in the absence of counsel for the parties. Porter, 99-1351 at 3-5, 762 So.2d at 1273-74

Similarly, while the trial judge’s staff in the matter before us was allegedly made aware of counsel’s misunderstanding regarding the date for which the hearing was scheduled, given the fact that counsel was properly notified of the correct date for the hearing and further observing that nothing had been submitted in opposition to the motion in limine combined with the renewed motion for summary judgment, we cannot say that the trial judge abused his discretion by proceeding with the hearing on the motions. Accordingly, we reject plaintiffs’ first specification of error.

In their second specification of error, plaintiffs allege that the trial judge should not have allowed Dr. Mary Eschete to testify at the hearing because she had previously been named a defendant in the case and because she was personally acquainted with the judge. We find no merit in this allegation. Neither bias nor the fact that a witness is a party or an employee of a party precludes a witness from being qualified as an expert. Pelts & Skins Export, Ltd. v. State ex rel. Department of Wildlife and Fisheries, 97-2300, p. 4 (La.App. 1st Cir.4/1/99), 735 So.2d 116, 122, writs denied, 99-2036, 99-2042 (La.10/29/99), 748 So.2d 1167, 1168. Moreover, La. R.S. 9:2794(D)(5) provides that a physician shall not be prohibited from qualifying as an expert solely because he is a defendant in a medical malpractice claim.

Dr. Eschete was originally named as a defendant in this case, but was dismissed as a party pursuant to the partial summary judgment rendered by the trial judge on July 26, 2005. In conjunction with the hearing on the motion in limine and the renewed motion for summary judgment, Dr. Eschete was accepted as an expert in the field of internal medicine and infectious disease. Chapter 7 of the Louisiana Code of Evidence outlines the parameters of an expert’s testimony and expressly provides that an expert may testify in the form of an opinion or otherwise, that the expert’s opinion may be based on facts or data perceived by or made known to the expert at or before the hearing and such facts or data need not be admissible in evidence, and that an expert’s opinion may even embrace the ultimate issue to be decided by the trier of fact in a civil case. See La. C.E. arts. 702-704. We observe that none of the grounds listed in chapter 6 of the Louisiana Code of Evidence for disqualifying or deeming Dr. Eschete incompetent to testify exist. See La. C.E. arts. 601, 602, 605 and 606. Hence, we find no error in the acceptance of Dr. Eschete as an expert witness and the admission of her testimony.

There is also no merit in plaintiffs’ third assignment of error. The denial of an initial motion for summary judgment does not bar a second summary judgment motion under the doctrine of res judicata. Simpson v. Davidson, 35,048, p. 4 (La.App.2d Cir.10/31/01), 799 So.2d 652, 655. The denial of a motion for summary judgment is an interlocutory judgment, which the trial court may change at any | fltime up to final judgment. Berry v. Paul Revere Life Insurance Company, 08-0945, p. 2 n. 1 (La.App. 1st Cir.7/9/09), 21 So.3d 385, 386 n. 1, writs denied, 09-2220, 09-2241 (La.12/18/09), 23 So.3d 942, 945. An interlocutory judgment cannot serve as the basis for a plea of res judicata. Spiers v. Roye, 04-2189, p. 14 n. 9 (La.App. 1st Cir.5/19/06), 927 So.2d 1158, 1170 n. 9 (per curiam; on rehearing). Furthermore, the jurisprudence of this and other circuits specifically allows a trial court to consider a second motion for summary judgment after a first motion for summary judgment on the same issue has been denied. See Melton v. Miley, 98-1437, p. 4 (La.App. 1st Cir.9/24/99), 754 So.2d 1088, 1090, writ denied, 99-3089 (La.1/7/00), 752 So.2d 867; Hargett v. Progressive Insurance Company, 08-0293, pp. 6-7 (La.App. 4th Cir.10/29/08), 996 So.2d 1199, 1202; and the eases cited therein. Likewise, the denial of a writ application for supervisory review of an interlocutory judgment does not bar reconsideration of, or a different conclusion on, the same question when an appeal is taken from a final judgment. McIntyre v. St. Tammany Parish Sheriff, 02-0700, p. 6 (La.App. 1st Cir.3/28/03), 844 So.2d 304, 308.

Thus, having found no merit in the plaintiffs’ first three specifications of error, we are left to consider the plaintiffs’ final specification of error regarding the merits of the summary judgment rendered.

On appeal, summary judgments are reviewed de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La.App. 1st Cir.12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La.6/15/07), 958 So.2d 1199. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230-231.

The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Smith v. Our Lady of the Lake Hospital Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Charlet v. Legislature of the State of Louisiana, 97-0212, p. 7 (La.App. 1st Cir.6/29/98), 713 So.2d 1199, 1203, writs denied, 98-2023, 98-2026 (La.11/13/98), 730 So.2d 934.

In order to prevail in a medical malpractice action, a plaintiff is required to establish: (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and the |n alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the involved medical specialty; (2) that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and (3) that as a proximate result of this lack of knowledge or skill or failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred. See La. R.S. 9:2794 A; Lieux, 06-0382 at 10-11, 951 So.2d at 314. In other words, the plaintiff must establish the standard of care applicable to the doctor, a breach of that standard of care, and that the substandard care caused an injury the plaintiff would otherwise not have suffered. Lieux, 06-0382 at 11, 951 So.2d at 314.

The physician’s conduct is always evaluated in terms of reasonableness under the circumstances existing when his professional judgment was exercised. The physician will not be held to a standard of perfection nor evaluated with the benefit of hindsight. Lefort v. Venable, 95-2345, p. 4 (La.App. 1st Cir.6/28/96), 676 So.2d 218, 220. In medical malpractice actions, opinions from medical experts are necessary to determine both the applicable standard of care and whether that standard was breached. Lefort, 95-2345 at 4, 676 So.2d at 220.

In the matter before us, the trial judge granted both the motion in limine and the renewed motion for summary judgment filed by LSUMC. On appeal, plaintiffs do not contest the granting of the motion in limine. Accordingly, we will not consider the propriety of that ruling, which has been neither argued nor briefed. See URCA, Rule 2-12.4; McGaskey v. National Automotive Insurance Company, 08-511, p. 10 (La.App. 3d Cir.11/26/08), 998 So.2d 788, 794, writ denied, 09-0459 (La.4/13/09), 5 So.3d 171; Neumeyer v. Schwartz, 97-995, pp. 6-7 (La.App. 5th Cir.3/25/98), 708 So.2d 1258, 1262. However, as the granting of the |12motion in limine has the effect of excluding Nurse Crochet as a witness, her testimony regarding causation cannot be considered for purposes of defeating LSUMC’s renewed motion for summary judgment.

In the renewed motion for summary judgment, as in the original urging of the motion, LSUMC “points out” that the plaintiffs will be unable to meet their burden of presenting expert medical testimony to establish that LSUMC’s breach of the applicable standard of care caused the damages claimed by the plaintiffs. In support of the motion, LSUMC presented the opinion of the Medical Review Panel, which found that LSUMC’s conduct “was not a factor of the resultant damages” despite finding that LSUMC breached the applicable standard of care. LSUMC also presented the testimony of Dr. Eschete, who also opined that the conduct of LSUMC did not cause the damages claimed by the plaintiffs, and, contrary to the Medical Review Panel, opined that LSUMC’s conduct did not breach the applicable standard of care.

An expert witness is generally necessary as a matter of law to meet the burden of proof on a medical malpractice claim. Lieux, 06-0382 at 11, 951 So.2d at 314-315. Although causation is not explicitly included among those elements listed in La. R.S. 9:2794 for which proof must be made through expert medical testimony, typically expert testimony is required to prove causation when the resolution of that issue is not a matter of common knowledge. Tillman v. Eldridge, 44,460, p. 12 (La.App.2d Cir.7/15/09), 17 So.3d 69, 77. Expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. There are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can. Pfiffner v. Correa, 94-0924, p. 9 (La.10/17/94), 643 So.2d 1228, 1234. However, as resolution of the issue of causation in this matter requires knowledge of the properties of the anti-tuberculin medications, especially regarding the physical affects of the medications, and the appropriate response of a physician presented with a patient with Mr. Bozarth’s symptoms, we conclude that the trial judge was correct in finding that expert medical testimony is needed to decide the issue of causation. See Guillory v. Dr. X, 96-85, p. 8 (La.App.3d 8/28/96), 679 So.2d 1004, 1009. The need for expert medical testimony is further indicated in this matter in light of the expert medical evidence presented by LSUMC to show that the breach of the standard of care did not cause any damage or injury to Mr. Bozarth. See Lieux, 06-0382 at 11, 951 So.2d at 315 (noting that the “requirement of producing expert medical testimony is especially apt when the defendant has filed a motion for summary judgment and supported such motion with expert opinion evidence .... ”); see also Guillory, 96-85 at 8-9, 679 So.2d at 1009. Accordingly, we find no error in the summary judgment rendered by the trial judge.

CONCLUSION

For the foregoing reasons, we find the January 30, 2009 judgment was properly rendered and thus affirm. All costs of this appeal are cast to the plaintiffs, Joanna Bozarth, Phyllis Garcia, Cynthia Berges, Stephanie Rosales, Mary Owen and Rachel Curtis.

AFFIRMED.

PETTIGREW, J., concurs and assigns Reasons.

PETTIGREW, J.,

Concurs with the Results, and assigns Reasons.

I,Although I concur with the result reached by the majority, I do not agree with the affirmative statement in Lefort v. Venable, 95-2345, p. 4 (La.App. 1 Cir. 6/28/96), 676 So.2d 218, 220, that in medical malpractice actions, opinions from medical experts are necessary to determine both the applicable standard of care and whether that standard was breached. I humbly agree with the holding in Pfiffner v. Correa, 94-0924, 94-0963, 94-0992, pp. 9-10, 643 So.2d 1228, 1234 (La.1994) which stated:

We hold that expert testimony is not always necessary in order for a plaintiff to meet his burden of proof in establishing a medical malpractice claim. Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under LSA-R.S. 9:2794’s requirements without medical experts, there are instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care and there is objective evidence, including the testimony of the defendant/physician, which demonstrates a breach thereof. Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant’s fault and the injury alleged.

      . The trial judge’s identification of the medical center as two separate entities, the "State of Louisiana, LSU Medical Center, Health Care Services Division” and the "Leonard J. Chabert Medical Center,” simply mirrored how the Medical Review Panel had identified the medical center in its opinion; however, based on the pleadings filed on behalf of the medical center, we recognize that the medical center is just one entity and that it remained a party to the action following the trial court’s July 26, 2005 ruling granting summary judgment in part.

      . Louisiana Code of Civil Procedure article 1602 provides that “[a] continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.”

      . Presumably, plaintiffs relied on the opposition filed in conjunction with the original motion for summary judgment to oppose the renewed motion.

      . According to La. C.E. art. 607, the proper manner by which to attack the credibility of a witness who is alleged to be biased is by examining the witness on that point. See also Pelts & Skins Export, Ltd.., 97-2300 at 4, 735 So.2d at 122. Evidence of bias then goes to the weight, rather than the admissibility of the evidence. Gunn v. Robertson, 01-347, p. 17 (La.App. 5th Cir. 11/14/01), 801 So.2d 555, 566, writs denied, 02-0170, 02-0176 (La.3/22/02), 811 So.2d 942. The weighing of such evidence would have been done by the trial judge whom the plaintiffs assert was prejudiced by his longstanding friendship with the witness, but the plaintiffs did not seek to recuse the judge or assert that he should have recused himself from the case. In any event, it is observed that the mere fact of an association between the judge and a witness, alone, is insufficient to justify recusation of a judge. See Radcliffe 10, L.L.C. v. Zip Tube Systems of Louisiana, Inc., 07-1801, pp. 9-10 (La.App. 1st Cir.8/29/08), 998 So.2d 107, 114-115, writs denied, 09-0011, 09-0024 (La.3/13/09), 5 So.3d 119, 120.

      . In oral reasons for judgment, the trial judge indicated that he was partially denying the motion for summary judgment as it related to LSUMC to allow the plaintiffs’ an opportunity to establish Nurse Crochet's qualifications to testify regarding how the tuberculin medications administered to Mr. Bozarth affected him.