author: SAUNDERS, Judge.

text:
    IN RE: Applying for the Agency ADOPTION OF M. L. D.
    18-822
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2019 Rehearing Denied June 19, 2019
    Chantel Conrad, 825 Kaliste Saloom Road, Brandywine III, Suite 150, Lafayette, LA 70508, (337) 262-2250, COUNSEL FOR APPELLANT: State of Louisiana, Dept. of Children and Family Services
    Kathy Lynn Cook, Mental Health Advocacy Service, 302 Dulles Drive, Suite U-47, Lafayette, LA 70506, (337) 262-2030, COUNSEL FOR OTHER APPELLANT: G. L. D.
    Thailund Porter-Green, Mental Health Advocacy Service, 110 French Street, Suite A, New Iberia, LA 70560, (337) 251-9575, COUNSEL FOR OTHER APPELLEE: M. L. D.
    Joseph A. Tabb, Baudry & Tabb, LLC, 111 Wilson Street, Franklin, LA 70538, (337) 828-0454, COUNSEL FOR APPELLEES: Derek Diboll, Tracey Diboll
    Court composed of John D. Saunders, Van H. Kyzar, and Candyce G. Perret, Judges.
   SAUNDERS, Judge.

Two minor children came into the custody of the State when the Agency received a report of neglect and lack of supervision. Subsequently, the children were adjudicated Children in Need of Care and placed in the home of Petitioners, Tracey Diboll and Derek Diboll, as a pre-adoptive placement. The biological siblings lived continuously in the home of Petitioners, until one of the siblings was hospitalized for behavioral issues. At that time, Petitioners filed a petition to adopt the remaining sibling, M.L.D. Defendants, Department of Children and Family Services ("DCFS"), as custodian of the minor children, and G.L.D., the sibling removed from the home, opposed the adoption and permanent separation of the biological siblings. M.L.D. also opposed the adoption. After an eight day trial, the trial court granted the adoption. It is from this judgment that Defendants appeal.

For the following reasons, we affirm.

I.

ISSUE

We must determine whether the trial court erred in granting the adoption of M.L.D.

II.

STANDARD OF REVIEW

It is settled law that the denial or grant of a petition for adoption poses a question of fact. Leger v. Coccaro , 98-202 (La.App. 3 Cir. 4/29/98), 714 So.2d 770, writ denied , 98-1423 (La. 7/2/98), 724 So.2d 740. Therefore, "[a]n appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong[.]" Blackman v. Brookshire Grocery Co. , 07-348, p. 2 (La.App. 3 Cir. 10/3/07), 966 So.2d 1185, 1187 (citing Rosell v. ESCO , 549 So.2d 840 (La.1989) ).

III.

FACTS AND PROCEDURAL HISTORY

On July 24, 2014, G.L.D. and M.L.D. were removed from their biological mother's care and placed in foster care by Defendant, DCFS, upon allegations of neglect and lack of supervision. In September 2014, the children were adjudicated Children in Need of Care ("CINC").

On July 13, 2015, allegations of physical abuse and neglect by the foster parents led to the children's removal and placement in the foster home of Plaintiffs, Tracey and Derek Diboll (the "Dibolls"). On May 27, 2016, parental rights were terminated and G.L.D. and M.L.D., (then ages eight and six respectivley), were freed for adoption.

Both G.L.D. and M.L.D. lived continuously with the Dibolls from July 2015, until January 2017, when G.L.D. was hospitalized for the third time and held for being suicidal and a threat to others. At that time, the Dibolls requested that DCFS remove G.L.D. from their home.

On March 9, 2017, the trial court granted the Dibolls Ex Parte Injunction preventing DCFS from exercising its custodial right to remove M.L.D. from their home. On June 28, 2017, this Injunction was vacated on a Motion by DCFS. Shortly thereafter, M.L.D. was moved into the same certified foster home as her brother, where both children have lived throughout the hearings on the Adoption.

On January 30, 2017, the Dibolls filed a petition to adopt M.L.D. only. On February 16, 2017, DCFS filed an Intervention, asserting the position that it is not in M.L.D.'s best interests to be legally and permanently separated from her full biological sibling. On March 31, 2017, a hearing on the Intervention was held and continued to May 23, 2017, in order to obtain an independent bonding assessment.

In May 2017, a bonding assessment was done by Brad Sibille. On May 23, 2017, a hearing was held and continued to July 21, 2017, as the bonding assessment that was done did not address the areas that the court and the parties were concerned about. At that hearing, the trial court ordered that Dr. Kenneth Bouillion conduct a bonding assessment of all parties involved. The July 21, 2017, hearing was continued to August 14, 2017, due to Dr. Bouillion's report being incomplete. On August 7, 2017, the attorneys for the parties and the trial court received a copy of Dr. Bouillion's report. On August 14, 2017, the testimony of Dr. Gary Mallon, an independent expert for DCFS, was taken in chambers.

On August 14, 2017, during the pre-trial conference, the Dibolls presented an amended Petition for Adoption of Child in Custody of Agency requesting that the Petition to Adopt be amended to include G.L.D. The trial court denied the Amended Petition, and the Petition to Adopt M.L.D. only commenced. That same date, M.L.D. testified in chambers on her own behalf. On that same date, and again on September 12, 2017, the Dibolls presented evidence and witnesses on their behalf. At the conclusion of the Dibolls' case-in-chief, DCFS made an oral motion to have the case dismissed for failure of the Dibolls to prove their case. M.L.D. joined in this Motion. The trial court denied the motion.

The trial was held over eight days: August 14, September 12, October 17, 20, 25, 31, November 27, and December 12, all in 2017. DCFS presented witnesses and evidence on September 12, 2017, October 17, 2017, October 25, 2017, October 31, 2017, and November 27, 2017. On December 12, 2017, G.L.D. presented witnesses and evidence on his behalf, and the Dibolls presented their rebuttal case.

At the trial court's request, post-trial memos were submitted in lieu of closing arguments. On or about December 20, 2017, the Dibolls presented an original post-trial memo. On or about December 27, 2017, DCFS submitted a post-trial memo. On or about January 2, 2018, M.L.D. submitted a post-trial memo. On or about January 3, 2018, the Dibolls submitted a reubuttal post-trial memo.

On February 28, 2018, the trial court rendered judgment with reasons, granting the adoption of M.L.D. by the Dibolls. On or about March 5, 2018, prior to the signing of a formal judgment, DCFS filed a Motion and Order for Appeal. On March 14, 2018, the Dibolls filed an objection to DCFS's Motion and Order for Appeal. That same date, DCFS filed an Exception of Lack of Jurisdiction and Response to the Objection. On March 15, 2018, the Dibolls filed a response to DCFS's exception. On March 22, 2018, G.L.D. filed a Response to Objection to DCFS's Motion and Order for Appeal and Subsequent Response by Counsel. On March 27, 2018, a hearing was held on the Dibolls Objection ... and the responses, following which the trial court signed a judgment granting the adoption of M.L.D. by the Dibolls.

It is from this judgment that DCFS appealed suspensively on March 8, 2018, alleging seven assignments of error. G.L.D. filed a separate Motion to Appeal suspensively on March 27, 2018, alleging three assignments of error. M.L.D. also filed a brief on appeal, incorrectly labeled as an appellee brief, and joined in those arguments and prayers for relief stated by DCFS and G.L.D.

IV.

DCFS'S ASSIGNMENTS OF ERROR

1. The Trial Court erred in denying DCFS's Motion for Involuntary Dismissal of the Petition.
2. The Trial Court erred in finding that it was in M.L.D.'s best interest to be adopted by Tracey Diboll and Derek Diboll .
3. The Trial Court erred in basing the best interest finding on a preponderance of the evidence.
4. The Trial Court erred in basing the best interest finding solely on speculation.
5. The Trial Court erred in granting the adoption of M.L.D. to Tracey Diboll and Derek Diboll without the consent of DCFS, the custodian of the child.
6. The Trial Court erred in granting the adoption of M.L.D. to Tracey Diboll and Derek Diboll without a finding that DCFS was being unreasonable in withholding consent to the adoption.
7. The Trial Court erred in casting the costs of the proceedings and the court ordered evaluation against the State.

ASSIGNMENT OF ERROR NUMBER ONE:

In its first assignment of error, DCFS contends that the trial court erred in denying its Motion for Involuntary Dismissal of the Petition. We find no merit to this contention.

The issue to be resolved in reviewing a ruling on a motion for involuntary dismissal is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Matherne v. Jefferson Par. Hosp. Dist. No. 1 , 14-403 (La.App. 5 Cir. 12/16/14), 166 So.3d 297, writ denied , 15-117 (La. 4/10/15), 176 So.3d 1032.

Louisiana Children's Code Article 104(2) states that, if there are no applicable statutes in the Children's Code, the Code of Civil Procedure applies. Louisiana Code of Civil Procedure Article 1672(B) (emphasis added) provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

DCFS first argues that its Motion for Involuntary Dismissal was made in a timely manner. Our review of the record reveals that DCFS made its Motion for Involuntary Dismissal after the questioning of a single witness. Moreover, once the motion was made, the Dibolls made clear to the trial court that other witnesses still needed to testify, including an expert and the adoption worker. The trial court denied the motion and declined to render any judgment until the close of all evidence, stating, "plaintiffs have proven a sufficient case, at this point, subject to whatever the Defense comes up with."

Second, DCFS maintains that there is no clear and convincing evidence in the record that M.L.D. is freed for adoption. Louisiana Children's Code Article 1199(B) states: "The petition shall be accompanied by a certified copy of any order terminating the rights of the child's parents." The record reveals that DCFS did not argue this in its motion, nor did they file pleadings in the trial court identifying this as an issue before the court. As such, the record relfects that DCFS failed to make its Motion for Involuntary Dismissal in a timely manner, and failed to properly preseve before this court the issue of whether M.L.D. had been freed for adoption. We note also that the trial court took judicial notice in the record that on May 27, 2016, "the parental rights of M.G.A. and J.L.D. as it relates to G.L.D. and M.L.D. were terminated by this Court." Accordingly, we affirm the trial court's ruling on these issues.

ASSIGNMENT OF ERROR NUMBER TWO:

In its second assignment of error, DCFS contends that the trial court erred in finding that it was in M.L.D.'s best interest to be adopted by Tracey Diboll and Derek Diboll. We find no merit to this contention.

To determine whether the grant or denial of a petition for adoption is warranted, the paramount consideration is the best interest of the child. Leger, 714 So.2d 770. This determination is assessed on "the facts of each individual case, and the trial court is vested with great discretion in making that determination." Id. at 774.

The supreme court has acknowledged that it is sometimes necessary to separate siblings, Tiffee v. Tiffee , 254 La. 381, 223 So.2d 840 (1969) ; and, where it is in the best interest of the children to be separated, courts have approved such arrangements.

DCFS argues that the best interest finding was based solely on how long M.L.D. would have to " wait in limbo before an actual adoption would take place." Our review of the record reveals that the trial court exercised great patience in evaluating the testimony and credibility of the witnesses, and the history of the children and parties, over a span of eight days. The record reflects that there is substantial evidence that G.L.D.'s behavioral issues, which negatively affected the children's past placements, could also indefinitely delay the possibility of their being adopted together in the future. G.L.D.'s behavioral issues include, but are not limited to:

1. Behavior that has caused both children to have to change foster homes several times.
2. His diagnosis of Adjustment Dysregulation Disorder, Hyperactivity Disorder, and mood outbursts, Attention Deficit Disorder, Hyper Defiant Disorder, Oppositional Defiant Disorder, Post Traumatic Stress Disorder, Unspecified Impulse Disorder, Unspecified Anxiety Disorder, Unspecified Ticks, and Unspecified Learning Problems.
3. His various episodes of flashing out and assaultive behavior at school and at the Dibolls.
4. His violent and aggressive outbursts, some of which are triggered by M.L.D.
5. His being PEC'd ("Physicians Emergency Certificate") on December 2 and 9, 2016, and on January 16, 2017.
6. His mental issues that go well beyond this adoption process.

The record further reveals that the trial court considered that M.L.D.:

1. Is a 7/8 year old in the third (3rd) grade who impressed the trial court with her level of intelligence for a child of her age.
2. Loves the Dibolls and it is her desire to be adopted by them.
3. Clearly understood that her adoption by the Dibolls would have the effect of her being separated from her brother G.L.D.
4. Was concerned about G.L.D. hurting her.

Ms. Levy, G.L.D. and M.L.D.'s therapist while they were residing with the Dibolls, testified that the Dibolls did everything they were supposed to do for G.L.D. and M.L.D., and that M.L.D. wanted to remain with the Dibolls. Ms. Levy also testified that she felt that some of G.L.D.'s outbursts were violent and aggressive; that his outbursts were triggered by different things, including M.L.D.; and that M.L.D. was concerned about G.L.D. hurting her.

Dr. Kenneth Bouillion's expertise as a clinical pyschiatrist was stipulated to by the parties. His evaluation of the children and the Dibolls occurred from June to November 2017. Dr. Bouillion testified that he felt that G.L.D. needs future treatment for an extended period of time by a pediatric neuropsychologist to determine if there is a cognitive impairment or if there is some neurological dysfunction. Dr. Bouillion further testified that after this period of treatment, no one knows what G.L.D.'s prognosis would be or whether he will need future treatment.

Dr. Ching Shih of Tyler Mental Health testified in this matter concerning G.L.D.'s diagnosis. Dr. Shih diagnosed G.L.D. as having Attention Deficit Disorder, Hyper Defiant Disorder, Oppositional Defiant Disorder, Post Traumatic Stress Disorder, Unspecified Impulse Disorder, Unspecified Anxiety Disorder, Unspecified Ticks, and Unspecified Learning Problems.

Joe Damiens, counselor for the Extra Mile Program, testified that in his experience working with DCFS, he has seen cases where children were adopted separately. In addition to cases he specifically worked on, he was also familiar with other cases, in general, with the Agency where siblings were not adopted together. He felt that the Dibolls seemed very bonded with M.L.D. He also felt that M.L.D. will have long-term effects and/or consequences if she is not adopted. He stated that it is possible that G.L.D.'s behaviors will never be improved.

At the conclusion of the presentation of the evidence, the trial court specifically found that:

[T]he DIBOLLS are loving, generous and kind people. They are certified foster parents.... [T]hey performed all acts of caring foster parents. They placed the children in various activities and provided a caring home for them.... This Court notes that to some degree, [G.L.D.'s] issues are due to this adoption process, but [G.L.D.] has mental issues that go well beyond this adoption process as per Dr. Bouillion's testimony.

Based upon the record as a whole, we find that the trial court's ruling that it was in M.L.D.'s best interest to be adopted by Tracey Diboll and Derek Diboll was reasonable. Accordingly, we affirm the trial court's ruling on this issue.

ASSIGNMENTS OF ERROR THREE AND FOUR:

We will address assignments of error three and four together as they assert that the trial court erred in basing the best interest finding on a preponderance of the evidence and/or a finding solely on speculation. We find no merit to these contentions.

The law does not state that the standard of evidence must be on a "clear and convincing" burden of proof standard. In State in Interest of P.T. , 14-1160, pp. 4-5 (La.App. 3 Cir. 3/4/15), 159 So.3d 1184, 1188, writ denied , 15-693 (La. 5/1/15), 169 So.3d 378, (emphasis added) (footnotes omitted), this court noted:

[L]ouisiana Children's Code art. 1217(B) ... provides that "[t]he court, after hearing and after taking into consideration information from all sources concerning the adoption, may enter a final decree of agency adoption, or it may deny the adoption. The basic consideration shall be the best interests of the child. " The trial court went on to note that the criteria for determining the best interests of the child in the case of a petition for adoption has never been articulated by the legislature "except for broad considerations expressed in [ La.Ch.Code art.] 1208." Specifically addressing the burden of proof, and referencing In re J.M.P. , 528 So.2d 1002 (La.1988), the trial court noted that "it put the burden of proof on the person proposing to get the adoption to convince the court that it was, in fact, [in] the best interest of the child."
In In re J.M.P. , 528 So.2d 1002, 1012 (La. 1988) (emphasis added), our supreme court stated as follows:
The statute does not allocate the burdens of proof with respect to the best interest of the child. But in our opinion both the burden of producing evidence and the burden of persuasion should be on the adoptive parents. The facts with regard to the crucial issue of the nature of the child's relationship with the adoptive parents lie peculiarly within their knowledge. Additionally, they are more apt to be able to produce expert witness testimony helpful to the court in deciding what is in the child's physical and emotional best interests. See McCormick, On Evidence, § 337, at 950 (3rd ed.1984).

DCFS argues that the standard of proof should be clear and convincing. DCFS maintains that the trial court's determination that it was in the best interest of M.L.D. to be adopted by Tracey Diboll and Derek Diboll was solely speculative. The State relies on Santosky v. Kramer , 455 U.S. 745, 756, 102 S.Ct. 1388, 1396, 71 L.Ed.2d 599 (1982) (citations omitted), in which the United States Supreme Court stated: This Court has mandated an intermediate standard of proof - "clear and convincing evidence" - when the individual interests at stake in a state proceeding are both "particularly important" and "more substantial than mere loss of money" Addington v. Texas , 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979).

However, the State's reliance on Santosky is misplaced, as Santosky involved the State's termination of parental rights. The instant matter is distinguishable from Santosky , because here, unlike in Santosky , the parental/child relationship had previously been severed; thus, the sole issue to be decided was whether the adoption was in the best interest of the child. In Santosky , 455 U.S. at 769-70, 102 S.Ct. 1388, (citations omitted) (emphasis added), the Court noted:

A majority of the States have concluded that a "clear and convincing evidence" standard of proof strikes a fair balance between the rights of the natural parents and the State's legitimate concerns [in state termination proceedings]. We hold that such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. We further hold that determination of the precise burden equal to or greater than that standard is a matter of state law properly left to state legislatures and state courts .

Here, the record reflects that in making its ruling, the trial court concluded:

This Court has to decide what is in the best interest of [M.L.D.] while understanding the effects it would have on [G.L.D.] and [M.L.D.'s] relationship for years to come. This Court understands that siblings separation should be of last resort. However, there are times and situations where separation by adoption must be allowed if it is in the best interest of the adoptive child.... Dr. Bouillion's testimony concerned this Court when he testified that G.L.D. needs future treatment for an extended period of time[.]
....
This Court further notes that prior to trial, the DIBOLLS attempted to amend their PETITION OF ADOPTION to include [G.L.D.] but DCFS forcefully objected to this untimely amendment. The DIBOLLS were wiling [sic] to have this Court consider their adoption of [G.L.D.] in order to keep these siblings together. This Court denied the untimely amended petition limiting this adoption proceeding to only include [M.L.D.].

Based upon our review of the record and the pertinent facts presented, we cannot say that the trial court erred in finding that it was in the best interest of M.L.D. to be adopted by Tracey Diboll and Derek Diboll based upon a preponderance of the evidence, as the burden of proof with respect to the best interest of the child is neither statutorily nor jurisprudentially mandated. The trial court's ruling is reasonably supported by the record. The record reflects that the trial court considered, among other things, the positive effects on M.L.D. of being adopted by the Dibolls, with whom she had established a close relationship, versus the negative impact of remaining in the foster care system indefinitely due to G.L.D.'s behavioral issues, which will possibly never be improved. It is also noteworthy that Tracey Diboll and Derek Diboll: (1) attempted to amend their petition to include G.L.D. in the adoption, and that DCFS objected; (2) expressed a willingness to continue visitation between the siblings after the adoption; and (3) expressed a desire to possibly adopt G.L.D. in the future once he receives the appropriate medical attention he needs to improve and/or resolve his behavioral issues. As such, the trial court's ruling, based on a preponderance of the evidence, is reasonable and is not solely speculative. Accordingly, we find no merit to these assignments of error based upon the nature of the immediately preceding discussion.

ASSIGNMENTS OF ERROR FIVE AND SIX:

We will address assignments of error five and six together as they assert that the trial court erred in granting the adoption of M.L.D. by Tracey Diboll and Derek Diboll without the consent of DCFS, the custodian of the child, and without a finding that DCFS was being unreasonable in withholding its consent to the adoption. We find no merit to these contentions.

Louisiana Children's Code art. 1193 (emphasis added) states, in pertinent part:

Unless rights have been terminated in accordance with Title X or XI, consent to the adoption of a child or relinquishment of parental rights shall be required of the following:
....
(5) The custodial agency which has placed the child for adoption, except that the court may grant the adoption without the consent of the agency if the adoption is in the best interest of the child and there is a finding that the agency has unreasonably withheld its consent.

DCFS argues that its consent to the adoption of a child is required as the custodial agency of the child unless the court finds that: (1) the adoption is in the best interest of the child and (2) the agency is being unreasonable in withholding its consent. DCFS maintains that this is a statutorily mandated two-part finding.

Having found that it was in M.L.D.'s best interest to be adopted by Tracey Diboll and Derek Diboll for the reasons stated herein, the trial court then considered whether DCFS was being unreasonable in witholding its consent. The evidence in this case consists of: (1) testimony of the witnesses; (2) testimony of experts; (3) documents, medical records, statements of the parties; and (4) other information which has been admitted into evidence. The trial court was aware of the physical and mental ramifications of approving or disproving the adoption and its effect on G.L.D. and M.L.D. in the years to come. The trial court discussed the adoptive parents' love for both children, G.L.D.'s behavioral problems that led to his repeated hospitalizations, and M.L.D.'s desire to be adopted with or without G.L.D. The trial court also discussed the State's witnesses and evidence that suggested it was in M.L.D.'s best interest to remain as a sibling group with G.L.D., and the potentially devastating effects the adoption would have on G.L.D., but neither relied on it nor found that most of G.L.D.'s episodes of flashing out and assaultive behavior were caused by either the adoptive parents or by way of the adoption proceedings. While the record reveals that the trial court was concerned with how G.L.D.'s cognitive impairment could indefinitely delay M.L.D.'s ability to have permanency in her life, its reasons for ruling that DCFS was unreasonable in withholding its consent to the adoption are more general insfoar as the trial court found, based upon the testimony and evidence presented:

This Court is not convinced by DCFS's and[G.L.D.'s position that all of G.D.L.'s mental issues rest solely on the threatened adoption of M.D.L. by the Dibolls....This Court further notes that prior to trial, the DIBOLLS attempted to amend their PETITION OF ADOPTION to include [G.L.D.] but DCFS forcefully objected to this untimely amendment. The DIBOLLS were wiling [sic] to have this Court consider their adoption of [G.L.D.] in order to keep these siblings together[.]

Under the manifest error rule mandated by the Louisiana Supreme Court in Rosell , 549 So.2d at 844, we "may not set aside a trial court's ... finding of fact in the absence of 'manifest error' or unless it is 'clearly wrong[.]" Although we sympathize with G.L.D., as some considerations weigh in favor of keeping the siblings together, the facts of this particular case convince us that the combination of factors are overwhelmingly in favor of the adoptive parents and that the adoption is in the best interest of M.L.D. and that DCFS was unreasonable in withholding its consent. As such, we find no error in the trial court's ruling. Accordingly, we affirm the trial court's ruling on these issues.

ASSIGNMENT OF ERROR NUMBER SEVEN:

In DCFS's seventh assignment of error, DCFS contends that the trial court erred in casting the costs of the proceedings and the court ordered evaluation against the State.

Louisiana Revised Statutes 13:5112(A) (emphasis added) provides, in pertinent part:

In any suit against the state or any department, board, commission, agency, or political subdivision thereof, the trial or appellate court , after taking into account any equitable considerations as it would under Article 1920 or Article 2164 of the Code of Civil Procedure, as applicable, may grant in favor of the successful party and against the state, department, board, commission, agency, or political subdivision against which judgment is rendered, an award of such successful party's court costs under [La.R.S.] 13:4533 and other applicable law as the court deems proper but, if awarded, shall express such costs in a dollar amount in a judgment of the trial court or decree of the appellate court .

DCFS argues that the trial court erred in casting the costs of the proceeding to the State. Had no opposition been filed, Tracey Diboll and Derek Diboll would have been responsible for paying the court costs related to the adoption. Our review of the record, however, suggests that the trial court did not exceed its discretion in ordering costs against the State. The costs of this court are $ 871.00. Accordingly, we affirm the trial court's ruling on this issue.

G.L.D.'S ASSIGNMENTS OF ERROR

1. The trial court erred when it applied the preponderance of the evidence standard because First and Fourteenth Amendment rights were in jeopardy, and the standard of proof should have been clear and convincing.

2. The trial court erred in not making a ruling as to whether DCFS had unreasonably withheld its consent to the adoption.

3. The trial court erred in ignoring the testimony and findings of the court appointed expert, along with the testimony of all other experts and behavioral healthcare providers, and in finding the adoption was in M.L.D.'s best interest.

ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, G.L.D. contends that the trial court erred when it applied the preponderance of the evidence standard because First and Fourteenth Amendment rights were in jeopardy, and the standard of proof should have been clear and convincing. We find no merit to this contention.

As discussed in DCFS's assignments of error three and four, in In re J.M.P. , 528 So.2d at 1012, (emphasis added), our supreme court stated:

The statute does not allocate the burdens of proof with respect to the best interest of the child. But in our opinion both the burden of producing evidence and the burden of persuasion should be on the adoptive parents. The facts with regard to the crucial issue of the nature of the child's relationship with the adoptive parents lie peculiarly within their knowledge. Additionally, they are more apt to be able to produce expert witness testimony helpful to the court in deciding what is in the child's physical and emotional best interests. See McCormick, On Evidence, § 337, at 950 (3rd ed.1984).

To determine whether the grant or denial of a petition for adoption is warranted, the paramount consideration is the best interest of the child. Leger , 714 So.2d 770 (emphasis added).

G.L.D. argues that the protection of constitutional rights requires a higher standard of proof. Based upon our review of the testimony and documentary evidence, we find that the trial court's ruling that it was in M.L.D.'s best interest to be adopted by Tracey Diboll and Derek Diboll, based upon a preponderance of the evidence, was reasonable. As such, no higher standard of proof is required. Accordingly, we affirm the trial court's ruling on this issue.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, G.L.D. contends that the trial court erred in not making a ruling as to whether DCFS had unreasonably withheld its consent to the adoption. We find no merit to this contention.

As discussed in DCFS's assignments of error five and six, La.Ch.Code art. 1193 (emphasis added) states, in pertinent part:

Unless rights have been terminated in accordance with Title X or XI, consent to the adoption of a child or relinquishment of parental rights shall be required of the following:
....
(5) The custodial agency which has placed the child for adoption, except that the court may grant the adoption without the consent of the agency if the adoption is in the best interest of the child and there is a finding that the agency has unreasonably withheld its consent.

Moreover, under the manifest error rule mandated by the Louisiana Supreme Court in Rosell , 549 So.2d at 844 :

[A]court of appeal may not set aside a trial court's ... finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.

G.L.D. argues that the trial court did not make a ruling as to whether DCFS had unreasonably withheld its consent to the adoption. Based on the record as a whole, the trial court's ruling that it was in the best interest of M.L.D. to be adopted by Tracey Diboll and Derek Diboll, without DCFS's consent was reasonable. As such, for the reasons discussed herein, DCFS unreasonably withheld its consent to the adoption. Accordingly, we affirm the trial court's ruling on this issue.

ASSIGNMENT OF ERROR NUMBER THREE:

In his third assignment of error, G.L.D. contends that the trial court erred in ignoring testimony and findings of the court-appointed expert, along with the testimony of all other experts and behavioral healthcare providers, and in finding that the adoption was in M.L.D.'s best interest. We find no merit to this contention.

To determine whether the grant or denial of a petition for adoption is warranted, the paramount consideration is the best interest of the child. Leger , 714 So.2d 770.

G.L.D. argues that procedurally when the trial court determined that the adoption was to be part of the CINC proceedings, both children, and their individual interests, became the subject of the trial. However, as discussed in DCFS's assignments of error number three and four, the Dibolls attempted to amend their Petition for Adoption to include G.L.D., but DCFS forecfully objected to the untimely amendment, and the trial court denied the untimely amended petition limiting this adoption proceeding to M.L.D. As such, the trial court had to decide what was in the best interest of M.L.D. while understanding the effects it would have on G.L.D. and M.L.D.'s relationship in the years to come.

The record reveals that prior to making its ruling, the trial court exercised great patience in hearing: (1) testimony of witnesses; (2) testimony of experts; (3) reviewing documents, medical records, statements of the parties; and (4) other information admitted into evidence over a span of eight days. As such, we find that after consideration of all relevant evidence, there was a reasonable factual basis for the finding in the trial court that it was in the best interest of M.L.D. to be adopted by Tracey Diboll and Derek Diboll. Accordingly, we affirm the trial court's ruling on this issue.

CONCLUSION

The Department of Children and Family Services asserts seven assignments of error: (1) the trial court erred in denying DCFS's Motion for Involuntary Dismissal of the Petition; (2) the trial court erred in finding that it was in M.L.D.'s best interest to be adopted by Tracey Diboll and Derek Diboll; (3) the trial court erred in basing the best interest finding on a preponderance of the evidence; (4) the trial court erred in basing the best interest finding on speculation; (5) the trial court erred in granting the adoption of M.L.D. by Tracey Diboll and Derek Diboll without the consent of DCFS, the custodian of the child; (6) the trial court erred in granting the adoption of M.L.D. by Tracey Diboll and Derek Diboll without a finding that DCFS was being unreasonable in withholding its consent to the adoption; and (7) the trial court erred in casting the costs of the proceedings and the court ordered evaluation against the State. Finding no merit to the Department of Children and Family Services' seven assignments of error, we affirm the trial court's rulings on these issues.

G.L.D. asserts three assignments of error: (1) the trial court erred when it applied the preponderance of the evidence standard because First and Fourteenth Amendment rights were in jeopardy, and the standard of proof should have been clear and convincing; (2) the trial court erred in not making a ruling as to whether DCFS had unreasonably withheld its consent to the adoption; and (3) the trial court erred in ignoring the testimony and findings of the court-appointed expert, along with the testimony of all other experts and behavioral healthcare providers, and in finding the adoption was in M.L.D.'s best interest. M.L.D. also filed a brief, incorrectly labeled as an appellee brief, and joined in those arguments and prayers for relief stated by DCFS and G.L.D. Finding no merit to G.L.D.'s three assignments of error, we affirm the trial court's rulings on these issues.

Costs of these proceedings in the amount of $ 871.00 are assessed to the State.

AFFIRMED.

      The initials of the children and their parents are used herein pursuant to Uniform Rules - Courts of Appeal, Rule 5-2. See also Uniform Rules - Courts of Appeal, Rule 5-1.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Michael MCCALLON v. KEY ENERGY SERVICES, LLC, et al.
    18-880
    Court of Appeal of Louisiana, Third Circuit.
    April 24, 2019
    Brian D. Calvit, Law Office of Brian D. Calvit, 7920 Wrenwood Blvd., Suite F, Baton Rouge, Louisiana 70809, (225) 926-2222, COUNSEL FOR PLAINTIFF-APPELLANT/APPELLEE: Michael McCallon
    Michael E. Parker, Allen & Gooch, A Law Corporation, Post Office Box 81129, Lafayette, Louisiana 70598-1129, (337) 291-1000, COUNSEL FOR DEFENDANT-APPELLANT: Key Energy Services, LLC
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Jonathan W. Perry, Judges.
   PICKETT, Judge.

The employee and his employer appeal the judgment rendered by the workers' compensation judge (WCJ) in favor of the employee. For the reasons discussed below, the judgment is reversed in part; amended in part; affirmed as amended; and remanded with instructions.

FACTS

On February 3, 2015, Michael McCallon was injured when the taxi in which he was a passenger was struck by another vehicle. Mr. McCallon, a resident of Natchez, Mississippi, was employed by Key Energy Services, LLC, as a derrick hand. He traveled to and from Williston, North Dakota, for work. Mr. McCallon had completed an eighteen-day hitch and was traveling to the Williston airport to return home when the collision occurred. To insure that he did not miss his flight, Mr. McCallon had his taxi driver arrange for another taxi to transport him the remaining distance to the airport.

Once home in Natchez, Mr. McCallon sought treatment for back pain and radiating leg pain, which he reported began during his flight home. He was diagnosed with a herniated disc at L5-S1, and surgery to repair the injury was performed in July 2015. One of Mr. McCallon's employee benefits was short-term disability, and he filed a claim for short-term disability benefits after learning the extent of his injury. He was paid short-term disability benefits until August 4, 2015.

In September 2015, Mr. McCallon filed a Disputed Claim for Compensation in which he alleged that he was injured while in the course and scope of his employment with Key Energy Services and, therefore, entitled to indemnity and medical benefits. Key Energy Services denied his claim and contends that Mr. McCallon was not in the course and scope of his employment when the collision occurred and that the collision was not an accident as defined by the Louisiana Workers' Compensation Act.

In April 2016, Mr. McCallon was a passenger in a vehicle when the driver lost control of the vehicle, and it rolled over. His L-3 vertebra was fractured in the accident. In May 2016, Mr. McCallon notified Key Energy Services of the accident and his injury. In June 2016, Mr. McCallon settled his claim for personal injuries against the driver and insurer of the vehicle for the $ 25,000 policy limits without obtaining Key Energy Services' consent to the settlement.

On July 18, 2016, the parties tried their claims before the WCJ. The parties' claims presented a number of issues for resolution, including whether Mr. McCallon was injured in an accident that occurred within the course and scope of his employment when the taxi collision occurred; if so, was Key Energy Services entitled to an offset for the short-term disability benefits Mr. McCallon was paid; and whether Mr. McCallon forfeited his right to compensation benefits because he settled his personal injury claim arising from the April 2016 accident without Key Energy Services' consent.

After taking the matter under advisement, the WCJ issued an oral ruling in which he held that Mr. McCallon was injured in the course and scope of his employment and entitled to indemnity and medical benefits. The WCJ further held that the April 2016 accident caused Mr. McCallon further injury and disability and that Mr. McCallon settled his claim for injuries arising out of that accident without obtaining Key Energy Services' consent to the settlement. Based on this finding, the WCJ held that Mr. McCallon forfeited all benefits to which he was or would be entitled. On December 16, 2016, the WCJ

signed a judgment consistent with his WCJ oral ruling.

Thereafter, Mr. McCallon filed a Motion for New Trial and/or Motion to Amend Judgment, and Key Energy Services filed a Motion for New Trial and/or Clarification of Ruling. After a hearing on both motions, the WCJ denied the motion for new trial but agreed to amend the judgment. On March 16, 2017, the WCJ again issued oral reasons for ruling in which he determined that because Mr. McCallon settled his injury claim for the April 2016 accident without Key Energy Services' consent, Mr. McCallon forfeited any benefits to which he was entitled after the April 2016 accident. The WCJ further stated that Mr. McCallon is not entitled to any benefits prior to the April 2016 accident, "until such time as a credit would be reduced by the [monies] he received in the tort suit, and/or [he] pays Key Energy Services for any benefits received."

After this oral ruling, Key Energy Services filed a Motion to Fix Judgment, and on June 12, 2018, the WCJ issued a second judgment. In this judgment, the WCJ held that Mr. McCallon was in the course and scope of his employment with Key Energy Services at the time of the accident, that he is entitled to benefits from February 3, 2015, to April 16, 2016, and that all medical bills are to be paid in accordance with the Louisiana Workers' Compensation fee schedule. The WCJ also held that Mr. McCallon "forfeited his rights to indemnity and/or medical benefits due to his failure to inform Key Energy Services and receive their [sic] consent to settle" his claim for the April 2016 accident. Both parties appealed.

ASSIGNMENTS OF ERROR

Mr. McCallon assigns the following errors with the WCJ's judgment:

1. The WCJ erred in finding that Claimant's subsequent accident aggravated the employment[-]related injury and resulted in further disability.
2. The WCJ committed legal error in applying the forfeiture provisions to indemnity benefits owed prior to the date of compromise.
3. The WCJ committed legal error by not allowing Claimant to reserve his right to future compensation under the "Buy Back" provision of La.R.S. [23:]1102(B).
4. The WCJ erred in failing to award penalties and attorney fees for ... Key [Energy Services'] failure to reasonabl[y] controvert.

Key Energy Services assigns the following errors with the WCJ's judgment:

1. The [WCJ] erred in finding that Michael McCallon was in the course and scope of his employment with Key Energy Services ... at the time of the incident in question.
2. The [WCJ] erred in finding that Michael McCallon proved the occurrence of an accident while in the course and scope of his employment with Key Energy Services as that term is defined by the Louisiana Workers' Compensation Act.
3. The [WCJ] erred in ordering that all medical bills incurred as a result of the February 3, 2015 accident be paid in accordance with the fee schedule established by the State of Louisiana instead of limiting reimbursement to $ 750 per provider for failure to obtain prior consent.
4. The [WCJ] erred in failing to give Key Energy Services a credit for payment of medical bills made by Michael McCallon's health insurance.

DISCUSSION

The issues presented by the parties herein question legal conclusions and factual findings made by the WCJ. On appellate review, an incorrect legal conclusion made by the trial court regarding a question of law is reviewed de novo. Latiolais v. Bellsouth Telecomms., Inc. , 11-383 (La.App. 3 Cir. 10/5/11), 74 So.3d 872. Factual findings are reviewed pursuant to the manifest error-clearly wrong standard, and the findings of the WCJ will not be set aside unless a review of the entire record shows that they are clearly wrong. Talbot v. Mouton Plumbing & Hauling, Inc. , 17-759, 17-357 (La.App. 3 Cir. 4/25/18), 244 So.3d 1235.

For ease of discussion, we discuss the issues presented by the parties' assignments of error in chronological order of the facts that gave rise to the assigned errors.

Did an Accident Occur within the Course and Scope of Employment?

Key Energy Services contends that Mr. McCallon was not in the course and scope of his employment with Key Energy Services when the taxi was hit and that this event does not satisfy the definition of "accident" as provided by the Louisiana Workers' Compensation Act. In accordance with its employment agreement, Key Energy Services scheduled Mr. McCallon's air travel to and from Williston via the Baton Rouge airport, paid his round-trip airfare, provided his lodging while working in Williston, and paid him eight hours pay at his regular hourly rate on the days that he traveled to and from Williston for work. Megan Smith, Key Energy Services workforce coordinator in Williston, testified that Key Energy Services established its travel program as an incentive to attract qualified employees to work in Williston, that the employee's agreement to this program is a requirement of employment with Key Energy Services, and that Key Energy Services did not offer relocation to Williston to its employees.

Ms. Smith made all air travel arrangements for Key Energy Services employees. She testified that travel dates were determined by the employee's work schedule, and once made, scheduled air travel would be changed only in an emergency. Otherwise, the employee was responsible for making the change and paying the rescheduled air fare. Once in Williston, employees were responsible for their transportation to and from their lodging in Williston to the airport. Mr. McCallon testified that Jim Bureau, his superior in Williston, instructed Key Energy Services' employees to arrive at the airport in Williston one hour before their scheduled flight.

Compensation benefits are owed to an employee when he suffered "personal injury by accident arising out of and in the course and scope of his employment[.]" La.R.S. 23:1031(A). The phrase "arising out of" has been interpreted to include injuries that occur in certain circumstances that are not within the course and scope of employment. It has been held to mean "that the accident must be the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed." Kern v. Southport Mill, Ltd. , 174 La. 432, 437, 141 So. 19, 21 (1932). The supreme court explained:

In determining, therefore, whether an accident 'arose out of' the employment, it is necessary to consider only this: (1) Was the employee then engaged about his employer's business and not merely pursuing his own business or pleasure; and (2) did the necessities of that employer's business reasonably require that the employee be at the place of the accident at the time the accident occurred?
The question whether or not the employee might have been injured in the same way, and even at the same place and time had he not been called there by the necessities of his employer's business, but had gone there only for his own pleasure or in pursuit of his own business, has nothing whatever to do with the case. It was his employer's business which called him to the place and time of the accident and not his own pleasure or business; and hence his injuries arose out of his pursuit of his employer's business and not out of his pursuit of his own business or pleasure.

Kern , 174 La. at 438-39, 141 So. at 21.

In Jackson v. Long , 289 So.2d 205, 207 (La.App. 4 Cir. 1974), the court clarified that when considering whether an employee's injuries arose out of the course and scope of his employment, courts must review the facts to determine "the closeness of the relationship between the accident and the employment." This is especially true when the employee was injured when traveling to or from work and his employer "concerned himself with the employee's transportation ... by furnishing transportion or paying the cost thereof or paying the employee wages for the time spent in traveling." Id.

Jackson involved travel pursuant to a contract for the employer to provide temporary labor in Mississippi after Hurricane Camille. At the direction of the employer, two employees traveled together in one of the employee's vehicles. The passenger laborer was injured as a result of an accident caused by the other laborer's negligence. The court concluded that the injured employee was entitled to compensation benefits based on a number of facts that are present here or similar to the facts in this case, explaining:

[The employer was] much more concerned with the employee getting to his place of work than was the ordinary employer .... Consequently, [the] employee, while traveling to the assigned work place, was actually furthering his employer's business interest, and in that respect the trip can be regarded as a necessary and required part of his employment.

Id. at 208. In reaching this conclusion, the court observed "that traveling was an integral part of this employment contract" and determined that because "the travel was in furtherance of the employment ... the risk of accident during travel was a risk interrelated with the nature of that employment." Id. Therefore, the employee "was protected while traveling to the assigned place of work in obedience to the employer's instructions and for the employer's benefit." Id. See also Orgeron on Behalf of Orgeron v. McDonald , 93-1353 (La. 7/5/94), 639 So.2d 224, 228, where the employer's interception of an employee traveling home from work and rerouting him to another job via the employer's office was held to evidence a "high degree of employer control and employer benefit in the specially ordered trip ... [that] brought the trip within the course and scope of [the employee's] employment."

Key Energy Services cites Potier v. Acadian Ambulance Service, Inc. , 13-914 (La.App. 3 Cir. 2/12/14), 153 So.3d 1082, writ denied , 14-527 (La. 4/25/14), 138 So.3d 647, in support of its position. There, the employee worked at more than one ambulance substation; however, his employer designated a specific substation as his home substation and paid him mileage based upon the predetermined distance between his home substation and whatever substation he was scheduled to work out of rather than the mileage he actually traveled. The employee was not compensated for the time he spent traveling, and the employer's representative testified that mileage was paid to induce or attract qualified personnel to travel to different substations.

In Potier , this court looked to Mitchell v. Pleasant Hill General Hospital, Inc. , 491 So.2d 183 (La.App. 3 Cir.), writ denied, 493 So.2d 1223 (La.1986), for guidance in resolving the issue. In Mitchell , 491 So.2d at 185 (emphasis added) (footnote omitted), this court explained:

The mere payments of travel expenses, without an expressed or implied agreement to furnish transportation, does not place the employee within the course and scope of his employment while traveling to and from work if such payments bear no relation to the actual travel expenses involved in the specific case, and are intended only as an inducement to attract qualified personnel at a particular job site.

Potier does not apply to the facts herein. In addition to paying him an inducement of eight hours pay the days he flew to and from Williston, Key Energy Services provided Mr. McCallon's air transportation to and from Williston and instructed him to be at the airport an hour before his flight.

Key Energy Services argues that because Mr. McCallon was responsible for providing his own transportation between the airport and his work site in Williston, Mr. McCallon's situation differs from the similar cases discussed above. We disagree. The sole reason Mr. McCallon traveled to Williston and to and from the airport there was his employment with Key Energy Services and its business in Williston. Travel was an integral part of his employment. Accordingly, the WCJ did not err in finding that Mr. McCallon was in the course and scope of his employment with Key Energy Services when he was injured during his taxi ride to the airport.

Key Energy Services next argues that because Mr. McCallon did not seek medical attention until he arrived home in Natchez, some fifteen hours after the collision, the WCJ erred in finding that Mr. McCallon proved he was injured in an accident as defined by the Louisiana Workers' Compensation Act. Accident is defined, in part, as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently ... directly producing at the time objective findings of an injury[.]" La.R.S. 23:1021(1). Key Energy Services points to the phrase "directly producing at the time objective findings of an injury" as support for its argument without citing one case in which a similar argument has been upheld. The jurisprudence is replete with cases where employees who did not experience or report objective signs of injury immediately after an incident occurred were held to have proved they suffered an accident. See , e.g. , Bruno v. Harbert Int'l Inc. , 593 So.2d 357 (La.1992), where the employee did not report that she injured her back at work and did not seek medical attention for her injury for more than eight days.

Lastly, Bourgeois v. Seabright Insurance Co. , 12-834 (La.App. 5 Cir. 4/10/13), 115 So.3d 50, cited by Key Energy Services, does not stand for this proposition. Rather, it holds that an employee "must prove an 'actual, identifiable , precipitous event' " caused his injury, which Mr. McCallon has done. Id. at 53 (quoting La.R.S. 23:1021(1) ). It does not hold that "directly producing ... objective findings of an injury" is synonymous with immediately causing objective signs of an injury.

Key Energy Services also argues that because Mr. McCallon did not identify his injury as being work-related when he sought medical treatment and obtained short-term disability benefits, he acknowledged that his L5-S1 injury was not a work-related injury. As the WCJ observed, a lay person is not expected to know the legal requirements as to whether an injury is work-related or not. The WCJ did not err in finding that Mr. McCallon proved that he suffered an accident in the course and scope of his employment with Key Energy Services.

Subsequent Accident and Notice

The WCJ held that Mr. McCallon's settlement of his personal injury claim arising out of that accident without obtaining Key Energy Services' consent to the settlement resulted in forfeiture of his right to compensation benefits. If an employee settles a personal injury claim against a "third person" without his employer's consent, he forfeits "the right to future compensation, including medical expenses." La.R.S. 23:1102(B). Third persons are defined as "any party who causes injury to an employee at the time of his employment or at any time thereafter" when "the employer is obligated to pay benefits ... because the injury by the third party has aggravated the employment related injury." La.R.S. 23:1101(C).

Mr. McCallon argues that the WCJ did not hold that the April 2016 accident aggravated his work-related back injury and that Key Energy Services did not prove that the April 2016 accident and injury aggravated his work-related back injury; therefore, the requirements of La.R.S. 23:1102(B) do not apply here. He further argues that if these requirements are held to apply, he provided Key Energy Services notice of the April 2016 accident, which allowed Key Energy Services the opportunity to protect its interests, but it failed to do so. For these reasons, Mr. McCallon contends that the WCJ erred in holding that he is only entitled to compensation benefits from February 3, 2015, through April 16, 2016.

For the WCJ to conclude that Mr. McCallon forfeited his compensation benefits for failing to obtain Key Energy Services' consent to his settlement, the WCJ must have determined that the April 2016 accident aggravated his work-related injury. The WCJ's oral reasons indicate that he did make this determination. The WCJ cited Haynes v. United Parcel Service , 05-2378 (La. 7/6/06), 933 So.2d 765, in support of its holding on this issue. The employee in Haynes was involved in two automobile accidents after he suffered a work-related injury. His physician testified that the injury he suffered in the first automobile accident was minimal. The employee testified, however, that both accidents were an "aggravation to the injuries I already had." Haynes , 933 So.2d at 769. The supreme court held that for purposes of La.R.S. 23:1101(C) and La.R.S. 23:1102(B), the employee's testimony established that the two automobile accidents aggravated his work-related injury.

Mr. McCallon testified that his back surgery to repair the herniated disc caused by the February 2015 accident was performed on July 2, 2015. He explained that after surgery, he regained feeling in his legs but had no pain other than pain related to his back surgery. Dr. Robert McGuire, his orthopedic surgeon, restricted Mr. McCallon's activities and ordered no heavy lifting. Mr. McCallon testified that the April 2016 accident fractured his L-3 vertebra and that the injury was being treated with pain medication and a back brace. He further testified that during his June 2016 visit with Dr. McGuire, Dr. McGuire informed him that he planned to perform a fusion if the L-3 vertebra did not heal. Mr. McCallon also testified that he had improved after his July 2015 surgery, but the April 2016 accident caused him more back pain than he had the day before the accident. Mr. McCallon's medical records show that the last prescription he filled for pain medication before the April 2016 accident was filled on August 3, 2015. After that date, he did not fill another prescription until April 19, 2016, which is the last date of the pharmacy records.

Dr. McGuire was deposed in February 2016. He testified that he last saw Mr. McCallon on January 4, 2016. At that time, Mr. McCallon was not completely healed, but he was doing well and had minimum signs of deficit. Dr. McGuire testified that Mr. McCallon could not go back to work at that time; however, he anticipated being able to release Mr. McCallon in June of 2016 after having him complete a functional capacity evaluation to determine what, if any, physical limitations he had.

Mr. McCallon contends there is no evidence establishing that Dr. McGuire cannot distinguish the two injuries and determine that his L5-S1 injury had completely healed in June 2016 and argues that Key Energy Services did not produce sufficient medical evidence to establish this fact. The majority of the cases Mr. McCallon cites in support of this claim involved subsequent injuries to different areas of the body from the work-related injury and have no application here. See, e.g., Ryan v. ESIF/Ryan Constr. , 46,916 (La.App. 2 Cir. 4/4/12), 88 So.3d 719, writ denied, 12-1023 (La. 6/29/12), 92 So.3d 344.

Mr. McCallon points out that in Buxton v. Iowa Police Department, 09-520, p. 17 (La. 10/20/09), 23 So.3d 275, 286 (quoting Haughton v. Fireman's Fund American Insurance Cos. , 355 So.2d 927, 929 (La. 1978) ), the supreme court differentiated the effect of subsequent, intervening injuries that do not aggravate a work-related injury, explaining: "If an accident causes a disability from which a workman would have recovered except for further disability produced by a separate, intervening cause, there is no liability for compensation beyond the disability produced by the job connected accident." The supreme court also held in Buxton , 23 So.3d at 287, "that causation is not necessarily and exclusively a medical conclusion. It is usually the ultimate fact to be found by the court, based on all the credible evidence."

Though Mr. McCallon did not fill prescriptions for pain medication after August 2015 until April 19, 2016, he testified that the injury he suffered in the April 2016 accident caused him more back pain than he had before the accident and that he could not return to work. The evidence further establishes that if not for his April 2016 injury, Dr. McGuire would likely have discharged Mr. McCallon in June 2016. Furthermore, based on the nature of the L-3 fracture, the requirement that he wear a back brace, and the pain it causes him, we find it unlikely that Mr. McCallon would be able to participate in a functional capacity evaluation as Dr. McGuire recommended. Based on this evidence, we cannot say the WCJ erred in finding that the April 2016 accident aggravated Mr. McCallon's work-related injury and that the forfeiture provision of La.R.S. 23:1102(B) applies.

Mr. McCallon next argues that he provided Key Energy Services notice of the April 2016 accident and that Key Energy Services' failure to protect its rights with regard to his third-party claim absolves him from having to obtain its consent to his settlement of the claim. He cites Houston General Insurance Co. v. Commercial Union Insurance Co. , 96-379 (La.App. 1 Cir. 11/8/96), 682 So.2d 1341, writ denied , 96-2950 (La. 1/31/97), 687 So.2d 409, in support of this claim. Houston dealt with an employer's suit against an insurer to recover benefits it had paid to its employee after the insurer had settled with the employee. The employee had provided the employer notice of his lawsuit, but the employer failed to intervene or file a separate suit to protect its interests. As a result, the court denied the employer's claim against the tortfeasor. In Houston , the employer had already obtained a judgment against its employee for the full amount of the employee's benefits when it filed suit against the third-party. Therefore, Houston shows that though Mr. McCallon had given Key Energy Services notice of the April 2016 accident, he also had an obligation to obtain Key Energy Services' consent before settling his claim arising from the accident.

Mr. McCallon next argues that the WCJ erred holding that he forfeited all benefits. This holding is contrary to La.R.S. 23:1102(B), which specifically provides that only future benefits are forfeited. Accordingly, we reverse the judgment with respect to this holding.

Mr. McCallon further argues that forfeiture applies only to compensation that becomes due after the date of the compromise, citing Bolton v. Tulane University , 99-970 (La.App. 4 Cir. 3/1/00), 755 So.2d 1003, writs granted, 00-922 (La. 5/26/00), 762 So.2d 626, 00-932 (La. 5/26/00), 762 So.2d 627, respectively; Faught v. Ryder/P*I*E Nationwide, Inc. , 543 So.2d 918, (La.App. 1 Cir.), writ denied , 545 So.2d 1040 (La.1989). He also asserts that to preserve his right to future benefits, he is only required to pay Key Energy Services fifty percent of his settlement, $ 12,500 of $ 25,000. Because Key Energy Services has not paid him any compensation benefits, Mr. McCallon proposes that this $ 12,500 should be applied against the past due amounts Key Energy Services owes him and that Key Energy Services should be ordered to pay him the benefits that exceed this amount.

In Bolton , 755 So.2d 1003, and Faught , 543 So.2d 918, the employees' work-related injuries were caused by the third parties with whom they settled claims. The employers had not paid the employees any benefits when the employees settled their claims, and the courts held that future compensation means compensation that becomes payable after the compromise. Id.

In Jeansonne v. American Native Construction , 97-1228, p. 11 (La.App. 3 Cir. 3/6/98), 710 So.2d 306, 312, this court disagreed with the courts' holdings in Bolton and Faught , explaining:

In Triche v. Regional Elec. & Const., Inc., 95-0105 (La.App. 1 Cir. 10/6/95), 671 So.2d 425, the first circuit was faced with a situation wherein an employee settled with a third party without obtaining the written approval of his employer or the employer's workers' compensation carrier. Unlike the case sub judice , that employer failed to pay his employee any benefits. The first circuit concluded, even where the employer has not paid compensation benefits prior to settlement, "the employer is entitled to a dollar for dollar credit against the full amount paid in compromise, less attorney[ ] fees and costs paid by the employee in prosecution of the third party claim." Id. at p. 10, 671 So.2d at 433. We find this reasoning persuasive and conclude that this interpretation of the statute is correct.

Mr. McCallon asserts that to preserve his right to future benefits, he need only pay Key Energy Services $ 12,500 of his $ 25,000 settlement. Triche , 671 So.2d 425, and Jeansonne , 710 So.2d 306, addressed this issue; however, in those cases, the employees' work-related injuries were caused by the third parties with whom the employees settled. Therefore, the employers and the third parties were each responsible for 100% of the employees' benefits.

That is not the case here: Key Energy Services alone is responsible for Mr. McCallon's benefits that accrued before April 16, 2016. For this reason, we agree with Mr. McCallon that $ 12,500 should be applied against the past-due amounts Key Energy Services owes him. Accordingly, if the total of his benefits that accrued before April 16, 2016, exceeds the total of the $ 12,500 credit and his short-term disability benefits, Key Energy Services owes Mr. McCallon the balance. For any benefits due after April 16, 2016, Key Energy Services is entitled to a dollar for dollar credit against the remaining $ 12,500 of the settlement before it must pay Mr. McCallon additional benefits.

Payment of Medical Bills

Key Energy Services next argues that the hearing officer erred in ordering it to pay all medical bills that Mr. McCallon incurred as a result of his February 3, 2015 accident in accordance with the fee schedule established by the State of Louisiana instead of limiting reimbursement to $ 750 per provider for failure to obtain prior consent. See La.R.S. 23:1142. Mr. McCallon cites La.R.S. 23:1142(E) in support of the WCJ's holding. Subsection E provides an exception to the general rule set forth therein, stating that when "the payor has denied that the employee's injury is compensable under this Chapter, then no approval from the payor is required prior to the provision of any diagnostic testing or treatment for that injury." Jurisprudence has held that the statutory cap does not apply in these situations. See Daniel v. Point To Point Directional Drilling, Inc. , 13-1407 (La.App. 3 Cir. 5/7/14), 139 So.3d 613, writ denied , 14-1165 (La. 9/19/14), 149 So.3d 245 ; Carradine v. Regis Corp. , 10-529 (La.App. 3 Cir. 11/3/10), 52 So.3d 181. In Carradine , 52 So.3d at 193, we observed that no employer is "automatically deprived of the opportunity to take advantage of the statutory cap created in La.R.S. 23:1142(B) [,]" rather each employer has the option of disputing the compensability or limiting its liability under the statutory cap.

Key Energy Services contends that the supreme court's holding in Church Mutual Insurance Co. v. Dardar , 13-2351 (La. 5/7/14), 145 So.3d 271, changed the application of this provision when medical providers fail to follow statutory requirements for approval of medical procedures. Dow v. Chalmette Restaurant, Ltd. , 15-336, p. 11 (La.App. 4 Cir. 5/18/16), 193 So.3d 1222, 1229, addressed this issue, explaining: "The denial of a request for medical treatment on the grounds that the injury is 'non-compensable' is not governed by La.R.S. 23:1203.1" because the form used to submit an appeal to the medical director provides, " '[d]isputes relating to compensability and/or causation are not addressed by the medical director.' " Accordingly, we find Dardar does not affect the WCJ's holding.

Credit for Medical Expenses Paid by Blue Cross Blue Shield

In its last assignment of error, Key Energy Services argues that the WCJ erred in not giving it a credit for medical bills paid by Blue Cross Blue Shield, Mr. McCallon's health insurance provider, as provided in La.R.S. 23:1212(A). This provision states, in pertinent part: "payment by any person or entity, other than a direct payment by the employee, a relative or friend of the employee ... of medical expenses that are owed under this Chapter, shall extinguish the claim against the employer or insurer for those medical expenses." Id.

Courts have held that, "the employer must plead its offset and prove it with evidence showing that a payment of a certain amount of workers' compensation claimant's medical expenses was made by a person other than claimant, a relative or friend of the claimant." Feingerts v. Am. Cas. Co. of Reading , 09-1209, p. 14 (La.App. 4 Cir. 3/10/10), 34 So.3d 358, 367. See also Alford v. Acadian Ambulance Serv., Inc., 96-639 (La.App. 3 Cir. 11/6/96), 682 So.2d 942. In its answer, Key Energy Services asserted a claim for offset of medical expenses in accordance with La.R.S. 23:1212, but it did not prove the amount of offset it is due at trial. Therefore, the WCJ denied its claim.

Mangiaracina v. Avis Budget Group, Inc. , 16-211 (La.App. 5 Cir. 9/22/16), 202 So.3d 171, affirmed the WCJ's holding that the payment of medical expenses by the employee's health insurer extinguished the employee's claim for those expenses, citing Olivier v. City of Eunice , 11-1054 (La.App. 3 Cir. 6/6/12), 92 So.3d 630, writ denied , 12-1570 (La. 10/12/12), 98 So.3d 874. In Olivier , this court held that a WCJ erred in awarding an employee the reimbursement of medical expenses paid by his health insurer, reasoning that La.R.S. 23:1212 was enacted to prevent employees from receiving a windfall from their employers when their health insurer had paid the expenses. We further noted that under La.R.S. 23:1205(B), health insurers have a right of 100% reimbursement against employers and their workers' compensation insurers for medical bills they pay in conjunction with an employee's compensation claim. Olivier , 92 So.3d 630.

A review of the medical bills in the record reveals that this evidence is insufficient to allow a calculation of the appropriate offset amount. One invoice indicates insurance payments were estimated, but no payment is reflected. Another invoice shows deductions against the running balance of charges; however, the deductions are not identified as payments, adjustments, or write-offs. Three other invoices indicate that Mr. McCallon personally paid all or a portion of those medical expenses. Accordingly, we remand this issue to the trial court for the parties to establish the offset to which Key Energy Services is entitled and the medical expenses it owes to Mr. McCallon. See Fernandez v. Hand Constr., LLC , 15-615 (La.App. 4 Cir. 5/16/16), 194 So.3d 1149.

Penalties and Attorney Fees

Mr. McCallon urges that the WCJ erred in failing to award penalties and attorney fees for Key Energy Services' failure to reasonably controvert his entitlement to indemnity and medical benefits. We agree. As discussed above, Key Energy Services' denial of Mr. McCallon's claims is contrary to well-established jurisprudence, and the single case it cites in support of its position is clearly inapposite to the facts herein.

Louisiana Revised Statutes 23:1201(F) governs the assessment of penalties and award of attorney fees for an employer's failure to pay benefits. This provision does not apply if the employer reasonably controverts the claim or if nonpayment results from conditions over which the employer had no control. La.R.S. 23:1201(F)(2).

Pursuant to La.R.S. 23:1201(F), we award Mr. McCallon $ 4,000 in penalties representing $ 2,000 for past indemnity benefits and $ 2,000 for past medical benefits. Additionally, we award him $ 12,000 in attorney fees for work performed before the WCJ and this court.

DISPOSITION

For the reasons discussed herein, the WCJ's judgment is reversed to the extent that it holds that Michael McCallon forfeited compensation benefits before June 21, 2016; it is amended to provide that Michael McCallon is entitled to reserve his right to future compensation as provided by La.R.S. 23:1102(B) ; it is also amended to award Michael McCallon $ 4,000 in penalties and $ 12,000 in attorney fees; and the matter is remanded to the trial court for calculation of the offset due Key Energy Services, LLC. for medical expenses paid on behalf of Michael McCallon by his health insurer. The judgment is affirmed in all other respects. All costs are assessed to Key Energy Services, LLC.

REVERSED IN PART; AMENDED IN PART; AFFIRMED AS AMENDED; AND REMANDED WITH INSTRUCTIONS.