Daphne Reissland v. Valluzzo Companies, LLC

DAPHNE REISSLAND * NO. 2025-CA-0379

VERSUS *
COURT OF APPEAL
VALLUZZO COMPANIES, *
LLC FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
THE OFFICE OF WORKERS’ COMPENSATION
NO. 23-04315, DISTRICT “7”
Honorable Heather Fairchild, Judge
******
Judge Dale N. Atkins
******
(Court composed of Judge Tiffany Gautier Chase, Judge Dale N. Atkins, Judge
Monique G. Morial)

Timothy E. Benedetto
WORKERS' COMPENSATION, LLC
3045 Ridgelake Ave., Suite 100
Metairie, LA 70002

COUNSEL FOR PLAINTIFF/APPELLANT, Daphne Reissland

Trenton J. Oubre
Terrel A. Thomas
Charles C. Szeszycki
BREAZEALE, SACHSE & WILSON, LLP
One American Place
23rd Floor
P.O. Box 3197
Baton Rouge, LA 70821

COUNSEL FOR DEFENDANT/APPELLEE, Valluzzo Companies, LLC

REVERSED IN PART; VACATED IN PART; REMANDED WITH
INSTRUCTIONS; ANSWER TO APPEAL DENIED
DECEMBER 29, 2025

DNA

TGC

MGM

This is a workers’ compensation case. Employee-appellant is Daphne

Reissland (“Ms. Reissland”), and employer-appellee is Valluzzo Companies, LLC

(“Valluzzo”). Ms. Reissland appeals the judgment issued by the workers’

compensation judge (“WCJ”)1 on December 5, 2024. In that judgment, in pertinent

part, the WCJ found Ms. Reissland was a part-time employee when she worked for

Valluzzo and sustained a workplace injury; and Ms. Reissland assigns error to the

finding that she was a part-time employee as opposed to a full-time employee.

Further, the WCJ held Ms. Reissland proved she experienced a work place

accident; she experienced a work-related injury; she sustained injuries related to

the work accident; and a causal connection between the work accident and her

injuries. However, the WCJ found Ms. Reissland made false statements for the

purpose of obtaining workers’ compensation benefits in violation of La. R.S.

23:1208, such that she forfeited her right to benefits and would be required to pay

restitution to Valluzzo. In this latter regard, the WCJ issued another judgment on

January 13, 2025, in which it delineated the amount Ms. Reissland owed Valluzzo

in restitution and ordered Ms. Reissland to pay a civil penalty pursuant to La. R.S.

1 Throughout this Opinion, “WCJ” will refer to the particular workers’ compensation

judge who rendered the decision in this matter.

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23:1208(D). Ms. Reissland assigns error to the WCJ’s finding that she made

misstatements in violation of La. R.S. 23:1208 such that she forfeited her right to

benefits and must pay restitution. In the alternative, Ms. Reissland assigns error to

the WCJ’s restitution calculation.

In addition to asserting assignments of error in its appellee brief, Valluzzo

filed an “Answer . . . to the Appeal of Appellant” (“Answer”). Therein, Valluzzo

seeks review of the WCJ’s failure to award it all attorney’s fees incurred pursuant

to La. R.S. 23:1208(C)(4); the total requested attorney’s fees and costs pursuant to

La. R.S. 23:1310.9; judicial interest on the restitution award pursuant to La. R.S.

23:1201.3; and additional costs, including penalties and attorney’s fees, pursuant to

La. R.S. 23:1201(G) for Ms. Reissland’s failure to pay any of the amount ordered

in the restitution judgment. Additionally, Valluzzo asserts the WCJ erred in certain

parts of the December 5, 2024 judgment, specifically in finding that Ms. Reissland

proved the alleged workplace accident of May 4, 2023; proved she sustained a

work-related injury; proved she sustained injuries related to the work accident; and

proved a causal connection between the accident and her injuries. Valluzzo also

contends the WCJ erred in the December 5, 2024 judgment in finding Valluzzo did

not prove entitlement to the intoxication presumption due to Ms. Reissland’s delay

in submitting to its drug testing request. Further, Valluzzo asserts the WCJ erred in

finding Valluzzo failed to prove Ms. Reissland’s intoxication was the cause of her

work accident.

For the following reasons, we reverse the WCJ’s December 5, 2024

judgment in part; vacate the January 13, 2025 judgment; and remand this matter to

the WCJ with instructions. We deny the requests by Valluzzo in its Answer.

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FACTUAL AND PROCEDURAL HISTORY

Incident, Early Treatment, and Initiation of Benefits

According to Ms. Reissland, she injured her left hip on May 4, 2023, while

employed by Valluzzo at a McDonald’s located in Meraux, Louisiana. Describing

the accident and injury in the Disputed Claim for Compensation - Form 1008 she

ultimately filed, Ms. Reissland stated that “[w]hile in the course and scope of her

employment . . . , [she] injured her left hip while throwing away garbage.” Based

on Ms. Reissland’s account of the incident in the record, she injured herself while

attempting to lift a bag of garbage that was heavier than anticipated because,

unbeknownst to her, another employee had placed liquids and grease in it.

Additionally, Ms. Reissland explained she was unable to perform her job duties the

day after the incident, May 5, 2023, and left her shift early, whereupon she

immediately sought treatment with her primary care physician, Dr. Lagarde-May

(“Dr. May”) at DePaul Community Health Center.

On June 6, 2023, Dr. Kevin Johnson (“Dr. Johnson”) evaluated Ms.

Reissland and noted complaints of pain in her lower back, left hip, and left leg. Dr.

Johnson recommended Ms. Reissland undergo conservative care and rendered her

totally disabled from work. Thereafter, on June 19, 2023, Valluzzo instituted Ms.

Reissland’s indemnity benefits, ultimately determining that Ms. Reissland was

entitled to temporary total disability benefits in the amount of $275.02 per week as

calculated based on an average weekly wage of $412.53 per week.

Subsequently, on June 23, 2023, Dr. Nicholas DiGerolamo (“Dr.

DiGerolamo”) evaluated Ms. Reissland, and he also noted that she complained of

pain in her lower back, left hip, and left leg, with pain centralized in her left lower

back area. Then, Dr. Johnson evaluated Ms. Reissland again on July 25, 2023, and

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likewise noted her complaints of pain in her lower back, left hip, and left leg. Dr.

Johnson maintained his designation of Ms. Reissland as totally disabled from

work, recommended that she continue conservative care, and ordered a lumbar

MRI.

On November 6, 2023, orthopedic spine specialist Dr. Marco Rodriguez

(“Dr. Rodriguez”) evaluated Ms. Reissland, reviewed the MRI taken of her spine,

and reported two bulging discs and one herniated disc in her lumbar spine. Given

Ms. Reissland’s continued pain, Dr. Rodriguez recommended she undergo epidural

steroid injections and continued her total disability restrictions. Dr. Rodriguez

requested authorization for continued care on November 15, 2023, but Valluzzo

denied the request based on a “causality issue.” On November 20, 2023, Dr.

Rodriguez also requested authorization to perform lumbar transforaminal

injections, but Valluzzo denied this too on the basis of a “question of causality.”

Medical Authorization Forms

On June 22, 2023, Valluzzo forwarded several release authorization forms to

Ms. Reissland, including a Health Insurance Portability and Accountability Act

(“HIPAA”) authorization. Approximately one month later, Ms. Reissland signed

the HIPPA authorization thereby allowing Valluzzo’s claims adjuster to access her

medical records.

Thereafter, on August 11, 2023, Valluzzo contacted Ms. Reissland and

asked her to execute another HIPPA authorization in favor of its counsel. Ms.

Reissland refused to execute the additional authorizations on the grounds that her

claim was not yet in litigation and that she had already signed the prior HIPPA

authorization. In a subsequent attempt by Valluzzo to get Ms. Reissland to sign the

HIPPA authorization in favor of its counsel, Valluzzo sent a cover letter which

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stated that Valluzzo’s counsel was “the authorized designee of [Valluzzo] to

procure records, reports, pathology, radiology bills and all other documents or

materials specified in requests submitted on behalf of [Valluzzo].” In response to

this letter, Ms. Reissland revoked all prior signed authorizations. On August 17,

2023, Valluzzo terminated Ms. Reissland’s indemnity benefits due to her

“hindrance and arbitrary actions in blocking all medical records discovery and” in

“denying [Valluzzo] from being able to obtain all relevant medical records . . . in

further investigation and [evaluation of] this claim.” Ms. Reissland subsequently

re-executed a HIPPA authorization on September 1, 2023, whereupon Valluzzo

reinstituted her indemnity benefits on September 13, 2023.

Disputed Claim for Compensation

Before Valluzzo reinstituted her benefits, however, on August 29, 2023, Ms.

Reissland filed her Disputed Claim for Compensation - Form 1008 (“Claim

Form”). On the Claim Form, Ms. Reissland noted Valluzzo terminated her

workers’ compensation benefits on August 17, 2023. Ms. Reissland requested, in

pertinent part:

Any and all equitable relief owed, including but not limited to
entitlement to awards of penalties and attorney’s fees in accordance
with La. R.S. 23:1201 et seq.; entitlement to reimbursement of costs
in accordance with La. R.S. 23:1310.9; entitlement to judicial interest
on all amounts awarded including but not limited to awards of
penalties, attorney’s fees and costs.

In subsequent pleadings, Ms. Reissland also requested judicial interest on

penalties, attorney’s fees, and costs.

Though Ms. Reissland’s Claim Form listed her injured body part as her left

hip, during the course of this dispute, she ultimately complained of lower back

problems too and amended her claim to include that complaint. Additionally,

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throughout the course of the proceedings, Ms. Reissland maintained that she was a

full-time employee and that Valluzzo should have classified her as such in

calculating her benefits. According to Ms. Reissland’s deposition testimony, her

supervisor informed her that she would be a full-time employee.

Answer and Request for Preliminary Determination Hearing

On September 20, 2023, Valluzzo timely filed its Answer and, in pertinent

part, requested a preliminary determination hearing (“PDH”) to determine whether

Ms. Reissland was entitled to continue receiving benefits. In this regard, Valluzzo

explained that Dr. Douglas Lurie (“Dr. Lurie”) examined Ms. Reissland on July

25, 2023, and was “not able to assign any type of causation of [Ms. Reissland’s]

current complaints in light of the strong nonorganic overlay,” and that she “should

return to regular duty immediately.”

Ms. Reissland opposed Valluzzo’s request for a PDH in a Motion to Strike

Request for PDH, asserting that Valluzzo had not offered evidence that it complied

with all of the provisions of La. R.S. 23:1201.1(A) that are a prerequisite for any

request for a PDH. Specifically, Ms. Reissland claimed that Valluzzo did not show

that it sent the Notice of Initial Payment (LWC Form 1002) to her on the same day

that the first payment of compensation was made. Though we need not delineate

the specifics of same, it is important to note that the WCJ eventually granted

Valluzzo’s request for a PDH and conducted one.

In pertinent part, in its Answer, Valluzzo also contended Ms. Reissland

delayed properly and timely reporting her work incident thereby thwarting the

administration of a prompt drug test immediately after the alleged accident.

According to Valluzzo, by failing to allow for prompt drug screening, Ms.

Reissland forfeited all rights to compensation pursuant to La. R.S. 23:1124.

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Valluzzo also asserted that La. R.S. 23:1081(7)(b) established a presumption that

Ms. Reissland was intoxicated at the time of the accident in light of her failure to

submit to a timely drug screening.

Termination of Benefits

On January 10, 2024, Valluzzo terminated Ms. Reissland’s indemnity

benefits on the grounds that she committed fraud pursuant to La. R.S. 23:1208 by

misrepresenting her prior and post-accident medical treatment and history, alleged

disabilities, condition, and basis and need for medical care. Valluzzo further

contended Ms. Reissland committed fraud pursuant to La. R.S. 23:1208.1 by

making willful misrepresentations and false statements regarding her true and

accurate medical history, pre-accident history, medications, and lost time from

work. Valluzzo also denied all requests for future medical treatment. Additionally,

Valluzzo filed a Supplemental and Amending Answer, as well as a Reconventional

Demand, with these same allegations. In its Reconventional Demand, Valluzzo

contended it was entitled to restitution and reimbursement in light of Ms. Reissland

having committed fraud and having made willful misrepresentations. In pertinent

part, Ms. Reissland had already submitted to a deposition, during which she denied

having a specific history of back pain, back problems, or treatment for back pain

and back problems; but her medical records revealed otherwise. Valluzzo

ultimately submitted with one of its pleadings a November 3, 2023 supplemental

report from Dr. Lurie. Therein, Dr. Lurie opined that Ms. Reissland’s history was

inaccurate, noting that she did in fact have a prior history of back problems and

there was no record of her being treated by Dr. May on the day after the alleged

incident contrary to Ms. Reissland’s report.

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Dr. Marco Rodriguez’s Deposition

On March 22, 2024, Ms. Reissland deposed Dr. Rodriguez. In his

deposition, Dr. Rodriguez noted that Ms. Reissland’s reason for her initial

appointment with him on November 6, 2024, was “cervical, thoracic, and lumbar”

pain. According to Dr. Rodriguez, Ms. Reissland denied having any history of low

back pain before her injury, and he did not know that Ms. Reissland had prior

diagnoses of lumbar radiculopathy. Nevertheless, Dr. Rodriguez testified he would

not change his opinion that Ms. Reissland began to experience left leg

radiculopathy as a result of her May 4, 2023 work incident.

Trial on the Merits

On October 16, 2024, the WCJ held a trial on the merits. Valluzzo submitted

the transcript of Dr. May’s August 9, 2024 deposition as one of its exhibits.

Therein, Dr. May denied having seen Ms. Reissland on May 5, 2023, and noted the

absence of a record for a visit on that date. Dr. May also testified that she had

diagnosed Ms. Reissland with lumbar radiculopathy on multiple occasions prior to

her alleged workplace accident and explained the diagnosis to Ms. Reissland.

Additionally, the WCJ heard testimony from Lauren Sulik (“Ms. Sulik”) and Ms.

Reissland.

Ms. Sulik’s Testimony

Regarding the calculation of Ms. Reissland’s average weekly wage based on

average hours worked, Ms. Sulik, Valluzzo’s claims adjuster, testified that she

calculated it using the part-time employee classification for Ms. Reissland. Ms.

Sulik admitted that nothing on Ms. Reissland’s pay stubs directly stated that she

was a part-time employee; however, Ms. Sulik noted the “job code” listed on Ms.

Reissland’s pay stubs was “job code 100,” which indicated Ms. Reissland was a

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“crew member.” As explained by Ms. Sulik, all crew members are considered part-

time employees. Ms. Sulik further explained that although no document

specifically indicated that Ms. Reissland was classified as a part-time employee,

only salaried managers at Valluzzo are full-time. According to Ms. Sulik, the part-

time/full-time distinctions between crew members and salaried managers is

common knowledge, but she could not refer to any location where this distinction

was in writing.

Ms. Sulik added that the Valluzzo policy handbook specifies that crew

members are not guaranteed a full-time schedule but can be given more hours the

longer they have been employed and after they have proven their abilities. Ms.

Sulik stated she used both the policy handbook and Ms. Reissland’s status as a

crew member to determine her average weekly wage. Valluzzo submitted the

policy handbook as one of its exhibits. In pertinent part, it defines part-time

employee as “those who are not assigned to a temporary or introductory status and

who are regularly scheduled to work less than the full-time work schedule.” (We

also note that when asked during a deposition whether Ms. Sulik had any written

acknowledgement that Ms. Reissland knowingly accepted part-time employment,

Ms. Sulik responded, “Written? No, not to my knowledge.”)

Ms. Reissland’s Testimony

Ms. Reissland testified she sought examination from Dr. May on the day

after her alleged workplace accident and informed her other doctors about this visit

with Dr. May. When asked whether Dr. May had previously diagnosed her with

lumbar radiculopathy prior to her work accident, Ms. Reissland answered “no,”

explaining that she had never heard of that diagnosis until her own counsel

mentioned it to her during the proceedings in this matter and had specifically never

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heard that diagnosis from Dr. May. Ms. Reissland testified that she had never been

diagnosed with or sought treatment for lumbar radiculopathy; did not know what

the condition meant; and had never received an explanation regarding the diagnosis

from Dr. May. Further, Ms. Reissland then testified that she still did not know

what lumbar radiculopathy was and that she did not understand why she continued

to receive questions about back pain because it was her hip that she injured in the

workplace accident, not her back. Additionally, Ms. Reissland testified that she did

not remember reporting back pain to Dr. May prior to the workplace accident, and

Ms. Reissland stated she did not have a history of low back pain. Ms. Reissland

also testified that her pain from the incident at work was different from any pain

she had previously experienced.

December 5, 2024 Judgment

Following the trial on the merits, the WCJ signed a judgment on December

5, 2024, which stated, in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that the Court finds that claimant, Daphne Reissland, met the burden
of proof necessary to establish the alleged work place accident of May
4, 2023.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that claimant, Daphne Reissland, met the burden of proof necessary to
establish a work related injury.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that claimant, Daphne Reissland, met her burden of proof to show that
she sustained injuries related to the work accident.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that claimant, Daphne Reissland, is a part-time employee, with an
average weekly wage of $412.52 and a corresponding TTD rate of
$275.02.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that defendant, Valluzzo Companies, LLC, is not entitled to the
intoxication presumption due to the delay of the drug testing request.

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IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that defendant, Valluzzo Companies, LLC, failed to prove that
claimant’s intoxication was the cause of her work accident.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the suspension of benefits due to the refusal by claimant and
claimant’s counsel to provide medical release authorizations is moot
as the reinstatement of benefits and retroactive payment has already
been paid in full.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that defendant, Valluzzo Companies, LLC, failed to prove that
claimant committed fraud pursuant to La. R.S. 23:1208.1.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that claimant, Daphne Reissland, made false statements for the
purpose of obtaining workers’ compensation benefits in violation of
La. R.S. 23:1208.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that claimant, Daphne Reissland, has forfeited her rights to workers’
compensation benefits due to her violations of La. R.S. 23:1208.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that claimant, Daphne Reissland, failed to meet the burden of proof
necessary to establish a violation of La. R.S. 23:1208 against
defendant, Valluzzo Companies, LLC.

IT IS FINALLY ORDERED, ADJUDGED AND DECREED
that judgment is hereby rendered in favor of Defendant and against
Claimant as set forth herein. The matter is set for a hearing to
determine restitution costs on behalf of the defendant on January 6,
2025, at 9:00 a.m.

The record establishes Valluzzo continued paying Ms. Reissland’s indemnity

benefits until December 10, 2024, at which time they suspended her benefits in

light of the WCJ’s December 5, 2024 judgment.

January 13, 2025 Judgment

Subsequently, on January 6, 2025, the WCJ held a restitution hearing, and

found that Valluzzo did not have the requisite knowledge that Ms. Reissland’s

made false statements for the purpose of obtaining benefits until December 5, 2024

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(the date of the WCJ’s prior judgment). On January 13, 2025, the WCJ issued

another judgment, which stated, in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that the claimant is ordered, pursuant to La. R.S. 23:1208(C)(4) and
(D), to pay restitution for benefits claimed or payments obtained for
the cost or value of indemnity benefits, the cost or value of health
care, medical case management, vocational rehabilitation,
transportation expense, and the reasonable costs of investigation and
litigation as follows:

Restitution in the amount of $21,490.86 in indemnity
benefits,
Restitution in the amount of $13,076.05 in health care
benefits, and
Restitution in the amount of $5,158.94 in reasonable
costs of investigation and litigation.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the claimant is ordered, pursuant to La. R.S. 23:1208(D), to pay a
civil penalty in the amount of $5,000.00.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the claimant shall pay this civil penalty directly to the employer in
accordance with the holding in Yarnell Ice Cream Company v. Allen,
759 So.2d 1066 (La. App. 2 Cir. 5/10/00).

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that matter [sic] is dismissed with prejudice.

Ms. Reissland’s timely appeal to this Court followed, and Valluzzo timely filed its

Answer with this Court.

ASSIGNMENTS OF ERROR AND ANSWER

In her brief to this Court, Ms. Reissland asserts five assignments of error.

Specifically, she contends:

1. The [WCJ] was manifestly erroneous in finding [Ms.] Reissland
committed fraud pursuant to La. R.S. 23:1208.

2. In the alternative, the [WCJ] abused its discretion in awarding
restitution under La. R.S. 23:1208 through the date of its
December 5, 2024 judgment.

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3. The [WCJ] committed legal error in calculating [Ms.]
Reissland’s indemnity benefits based on her classification as a
“part[-]time” worker.

4. The [WCJ] abused its discretion in failing to award multiple
penalties and attorney’s fees pursuant to La. R.S. 23:1201(I)
and/or (F).

5. The [WCJ] committed legal error in failing to award [Ms.]
Reissland cost reimbursement pursuant to La. R.S. 23:1310.9
and failing to award judicial interest on all penalties, costs, and
attorney’s fees awarded.

Valluzzo asserts three assignments of error in its brief to this Court.

Specifically, Valluzzo contends:

1. The [WCJ] committed manifest error in the failure to award
[Valluzzo] all attorney’s fees incurred by [Valluzzo] as
established in evidence and made part of the Trial Court record,
to be included as part of the Restitution Judgment as
“reasonable costs of investigation and litigation” in the
Judgment rendered on January 6, 2025, pursuant to La. R.S.
23:1208.

2. The [WCJ] committed manifest error in its failure to award all
requested attorney’s fees and the total cost of the proceedings,
pursuant to La. R.S. 23:1310.9, plus judicial interest on the
entire restitution award pursuant to La. R.S. 23:1201.3 to
[Valluzzo] against [Ms. Reissland] in the Restitution Judgment
rendered on January 6, 2025.

3. The [WCJ’s] Restitution Judgment of January 6, 2025, should
be modified and revised to award [Valluzzo] all additional
damages and costs, including penalties and attorney’s fees upon
the running of all deadlines, pursuant to La. R.S. 23:1201(G).

Additionally, Valluzzo filed an Answer with this Court. In its Answer,

Valluzzo prays for and requests the following relief:

[1]. That the [WCJ’s] [j]udgment of January 6, 2025, appealed from
by [Ms. Reissland] be modified, revised and amended, to
expressly award all requested attorney’s fees and the total costs
and expenses of these proceedings and all recoverable amounts
with legal interest to [Valluzzo] pursuant to La. R.S.
23:1208(C)(4) and (D).

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[2]. That the Trial Court Judgment of January 6, 2025, appealed
from by [Ms. Reissland] be modified, revised and amended to
award all attorney’s fees and costs and all recoverable amounts
with legal interest to [Valluzzo], on grounds that [Ms.
Reissland’s] claims were not brought on reasonable ground
pursuant to La. R.S. 23:1310.9.

[3]. That this Honorable Court award judicial interest on all sums
owed to [Valluzzo], by [Ms. Reissland], pursuant to La. R.S.
23:1201.3.

[4]. That this Honorable Court award all further costs, expenses,
and attorney’s fees incurred in responding to this appeal by
[Ms. Reissland]. Through its response, [Valluzzo’s] counsel has
and will exercise additional work, effort, and skill in answering
and responding to this appeal considering all costs, briefs,
pleadings and oral arguments herein; and based upon
[Valluzzo’s] efforts, [Ms. Reissland] must pay the costs of this
additional effort to [Valluzzo] pursuant to La. C.C.P. Art.
2133(A).

[5]. Except as specifically set forth in the Answer by [Valluzzo]
herein, [Valluzzo] prays that the Judgment of the Trial Court
rendered on December 5, 2024, be specifically affirmed and
approved, subject to the specific demands, modifications and
revisions set forth in [Valluzzo’s] Answer herein; That the
Judgment of the Trial Court rendered in Open Court on January
6, 2025, and signed as a Written Judgment on January 13, 2025,
granting restitution of benefits be affirmed and approved herein,
except for the specific demands, modifications, revisions, as set
forth in the Answer by [Valluzzo] herein; and

[6]. That [Ms. Reissland] be condemned to pay all costs and all
expenses and applicable recoverable amounts of this appeal to
[Valluzzo].

We begin our discussion with Ms. Reissland’s assignments of error before

resolving Valluzzo’s assignments of error and the requests in Valluzzo’s Answer.

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DISCUSSION

Ms. Reissland’s Assignments of Error

Assignment of Error Number One: The WCJ’s Finding Ms. Reissland Violated
La. R.S. 23:1208 and Forfeited Her Right to Benefits

In her first assignment of error, Ms. Reissland asserts the WCJ “was

manifestly erroneous in finding [she] committed fraud pursuant to La. R.S.

23:1208.” At the outset, Ms. Reissland contends she did not make any false

statements. Nonetheless, Ms. Reissland further contends that to the extent she

made “false” statements, she did not make them “willfully.” That is, Ms. Reissland

argues it “was clearly not the case” that she “intentionally misrepresented her past

medical history . . . and . . . withheld . . . information . . . for the purpose of

obtaining benefits.” Additionally, Ms. Reissland argues that “[t]o the extent [she]

made ‘false’ statements,” they “were inadvertent and inconsequential.” In this

regard, she cites to jurisprudence for the proposition that if treating physicians do

not change their opinions about the causation element of a workers’ compensation

claimant’s claim, then the misrepresentation was inadvertent and inconsequential.

Countering, Valluzo asserts the WCJ “made a correct factual finding, based

on all testimony and evidence presented at trial, that [Ms. Reissland], made willful

misrepresentations and committed fraud pursuant to La. R.S. 23:1208 and forfeited

all benefits.” In particular, Valluzzo argues that “[c]ontrary to [her] testimony,

[Ms. Reissland’s] prior medical records reveal that she has an extensive past

medical history of low back pain and treatment since at least 2009 through 2023.”

Additionally, Valluzzo asserts Ms. Reissland made “significant false statements”

regarding her “medical evaluations and treatment after the accident with Dr. May

at Depaul Community Health Clinic.”

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The WCJ ruled Ms. Reissland forfeited her rights to workers’ compensation

benefits due to her violation of La. R.S. 23:1208. Louisiana Revised Statutes

23:1208(A) states that “[i]t shall be unlawful for any person, for the purpose of

obtaining or defeating any benefit or payment under the provisions of this Chapter,

either for himself or for any other person, to willfully make a false statement or

representation.” The statute delineates criminal and civil penalties a workers’

compensation judge may assess when an employee violates La. R.S. 23:1208(A).

Additionally, if a violation of La. R.S. 23:1208(A) occurs, the “employee . . . shall

. . . forfeit any right to compensation benefits under this Chapter.” La. R.S.

23:1208(E). Disqualification from benefits under La. R.S. 23:1208 occurs when

there is “1) a false statement or representation, 2) which is willfully made, and 3)

which is made for the purpose of obtaining workers’ compensation benefits.”

Baker v. Harrah’s, 2015-0229, p. 32 (La. App. 4 Cir. 3/9/16), 190 So.3d 379, 399

(citing Resweber v. Haroil Constr. Co., 1994-2708, 3138, p. 7 (La. 9/5/95), 660

So.2d 7, 12).

Because “[t]he issue of whether an employee has forfeited her rights to

benefits is a factual determination,” the appellate court “should not . . . disturb[]”

that finding “on appeal absent manifest error.” Hebert v. Fresh Market, Inc., 2019-

0412, p. 19 (La. App. 4 Cir. 9/18/19), 280 So.3d 756, 771 (citing Baker, 2015-

0229, p. 32 (La. App. 4 Cir. 3/9/16), 190 So.3d 379, 399). Under that standard of

review, “the appellate court determines whether the trier of fact’s conclusion was

reasonable, not whether the trier of fact was right or wrong.” Safford v. New

Orleans Fire Dep’t, 2023-0495, p. 23 (La. App. 4 Cir. 2/1/24), 384 So.3d 909, 928

(citing Thibodaux v. Grand Isle Shipyard, 2016-0583, p. 6 (La. App. 4 Cir.

12/21/16), 207 So.3d 459, 464). Nevertheless, “if legal error interdicts the fact-

16

finding process in a workers’ compensation proceeding, then the appellate court

applies the de novo standard of review instead.” Id. (internal quotation marks

omitted) (quoting Thibodaux, 2016-0583, p. 6, 207 So.3d at 465). As this Court has

explained, “Statutory forfeiture is a harsh remedy and must be strictly construed.”

Hebert, 2019-0412, p. 19, 280 So.3d at 771 (citing Baker, 2015-0229, p. 32, 190

So.3d at 399). Therefore, an “inadvertent or inconsequential statement[] will not

give rise to a finding of a willful misstatement, triggering statutory penalties.” Id.

In an Opinion issued by this Court, Hutchison v. Aldworth Co., the focus, in

pertinent part, was on whether the medical providers’ opinions as to the worker’s

injury would change upon learning about the worker’s misstatements regarding

prior complaints to the body part allegedly injured in the workplace accident.

2004-0024, pp. 9-10 (La. App. 4 Cir. 11/10/04), 888 So.2d 1052, 1058. This Court

found the employer had “not put forth any evidence that any of [the employee’s]

alleged false statements were made for the purpose of obtaining compensation

benefits.” Id. at p. 9, 888 So.2d at 1058. Specifically, this Court noted the employer

“present[ed] no evidence from any of the medical providers that their findings

regarding [the employee’s] disability status and their opinion that the work

accident aggravated [his] preexisting condition would have changed as a result of

these purported false statements.” Id. at pp. 9-10, 888 So.2d at 1058. Accordingly,

this Court affirmed the workers’ compensation judge’s denial of the employer’s

claim for forfeiture of benefits pursuant to La. R.S 23:1208. Id. at p. 10, 888 So.2d

at 1058. Similarly, in Ebarb v. Boise Cascade Co., the Louisiana Third Circuit

Court of Appeal (“Third Circuit”) found no manifest error in the workers’

compensation judge’s denial of the employer’s La. R.S. 12:1208 fraud defense as it

related to the employee’s lower back claim. 2016-94, p. 19 (La. App. 3 Cir.

17

7/13/16), 202 So.3d 1087, 1100. The Third Circuit noted that “all of the physicians

found that [the employee] suffered at least a sprain or a strain of her lower back as

a result of her March 26, 2012 work-related accident.” Id. Additionally, the Third

Circuit pointed out that one of the doctors “admitted that while he would consider

any prior medical records in reaching an opinion on causation, he denied that he

would automatically change his opinion if presented with medical records

evidencing [the employee] had prior lower back complaints.” Id.

In the matter sub judice, we find the WCJ erred in failing to consider the

effect—or lack thereof—of Ms. Reissland’s alleged misstatements and thus failed

to consider whether they were inadvertent or inconsequential. As in Hutchison and

Ebarb, we likewise note the absence of evidence from any of the medical providers

that their opinion about Ms. Reissland’s injury would change based on her alleged

misstatements about her prior back pain and problems, as well as her history of

treatment for back pain and problems. In fact, Dr. Rodriguez opined Ms. Reissland

sustained an injury related to her workplace accident and suffered from left leg

radiculopathy after the accident. Dr. Rodriguez stated that even upon learning Ms.

Reissland had prior back pain and problems, this did not change his opinion.

Additionally, Dr. Rodriguez characterized Ms. Reissland’s post-accident pain as “a

completely new issue.” In his supplemental report, Dr. Lurie merely found that Ms.

Reissland misstated her history of back pain and problems based on her medical

records but did not mention how or if this affected his diagnosis.

Similarly, Valluzzo contends Ms. Reissland misrepresented her treatment

history when she claimed she saw Dr. May on the day after the accident because

Dr. May had no record of a visit for that date. Again, the issue is whether this

alleged misstatement changed any of the medical providers’ opinions. Though

18

seeking treatment immediately following the accident might have bolstered Ms.

Reissland’s claim that she suffered a workplace injury the day prior, none of the

medical providers stated their opinion would change upon learning that Ms.

Reissland did not in fact see Dr. May the day after the accident. Accordingly, we

reverse the WCJ’s December 5, 2024 judgment insofar as it held Ms. Reissland

violated La. R.S. 23:1208 and forfeited her right to workers’ compensation

benefits.

Further, we note that La. R.S. 23:1201.3(A) provides:

If payment of compensation or an installment payment of
compensation due under the terms of an award, except in case of
appeals from an award, is not made within ten days after the same is
due by the employer or insurance carrier liable therefor, the workers’
compensation judge may order a certified copy of the award to be
filed in the office of the clerk of court of any parish, which award
whether accumulative or lump sum, when recorded in the mortgage
records, shall be a judicial mortgage as provided in Civil Code Article
3299. Any compensation awarded and all payments thereof directed to
be made by order of the workers’ compensation judge shall bear
judicial interest from the date compensation was due until the date of
satisfaction. The interest rate shall be fixed at the rate in effect on the
date the claim for benefits was filed with the office of workers'
compensation administration.

As explained by the Louisiana Fifth Circuit Court of Appeal, “Because the

language of [La. R.S. 23:101.3(A)] is mandatory, an award of legal interest in

workers’ compensation cases is not discretionary with the court, as the interest

attaches automatically until the judgment is satisfied, whether prayed for in the

petition or mentioned in the judgment.” Phillips v. Joseph Mgmt. Servs., Inc.,

2003-715, p. 13 (La. App. 5 Cir. 11/12/03), 861 So.2d 625, 634. See also La. R.S.

1:3 (stating that “[t]he word ‘shall’ is mandatory and the word ‘may’ is

permissive”). Thus, Ms. Reissland is entitled to interest from the date

compensation was due and until the date of satisfaction per La. R.S. 23:1201.3(A).

19

Assignment of Error Number Two: The Award of Restitution under La. R.S.
23:1208 through the date of the December 5, 2024 Judgment

Next, and in the alternative, Ms. Reissland asserts the WCJ abused its

discretion in awarding restitution pursuant to La. R.S. 23:1208 through the date of

its December 5, 2024 judgment. Having reversed the finding in the WCJ’s

December 5, 2024 judgment that Ms. Reissland violated La. R.S. 23:1208 and

forfeited her right to benefits, we also necessarily vacate the WCJ’s January 13,

2025 restitution judgment, which ordered Ms. Reissland to reimburse the benefits

she received and to pay a penalty. This assignment of error as is now moot.

Assignment of Error Number Three: The Calculation of Ms. Reissland’s
Indemnity Benefits Based on Her Classification as a “Part Time” Worker

Next, Ms. Reissland argues the WCJ “committed legal error in calculating

[her] indemnity benefits based on her classification as a ‘part time’ worker.” Ms.

Reissland disputes that Valluzzo hired her as a part-time employee; and she notes

that under La. R.S. 23:1021(11), the record must demonstrate an “objective finding

that the employee knowingly accepted employment under [the limited conditions

delineated in La. R.S. 23:1021(11)] at the time of his [or her] hiring.” Accordingly,

Ms. Reissland contends the WCJ should have calculated her average weekly wage

using the forty-hour presumption contained in La. R.S. 23:1021(13)(a)(i), which

would yield an average weekly wage of $440.00 with an applicable compensation

rate of $293.33. Valluzzo does not address this assignment of error in its brief to

this Court.

In defining “part-time employee,” La. R.S. 23:1021(11) provides that this is

“an employee who as a condition of his [or her] hiring knowingly accepts

employment that (a) customarily provides for less than forty hours per work week,

and (b) that is classified by the employer as a part-time position.” If an

20

employment contract does not comply with the definition of part-time employment

found in La. R.S. 23:1021(11), it does not controvert the plaintiff-employee’s

claim of full-time status. Leger v. A-1 Nursing Registry, 1998-1731, p. 4 (La. App.

3 Cir. 4/28/99), 737 So.2d 142, 144. As explained by the Third Circuit, “[a]ny

measure short of informing the employee of his part-time status does not satisfy

the” definition of part-time employee found in La. R.S. 23:1021(11). Id. (quoting

Scott v. Central Indus., Inc., 602 So.2d 201 (La. App. 3d Cir. 1992)). Additionally,

pay stubs cannot establish an employee’s status as full- or part-time because the

employee does not receive these until after accepting his or her position. Id. at pp.

8-9, 737 So.2d at 147.

In Johnson v. Travelers Insurance Co., the Third Circuit focused on the

“knowingly” aspect of La. R.S. 23:1021(11), stating:

The record is replete with evidence that plaintiff did not “knowingly”
accept employment that customarily provides for less than forty hours
per week. Plaintiff considered himself to be a full-time, regular
employee. . . . Furthermore, plaintiff was always available for work
and he worked as much as they needed him. The record reflects that
plaintiff was never told that he was classified or considered “part-
time”. It is incumbent upon employers to define “part-time” status of
certain employees and to establish some procedure to satisfy the
criterion that the employee had knowingly taken a part-time job.

509 So.2d 519, 521 (La. App. 3d Cir. 1987). In so ruling, the Third Circuit also

quoted favorably from the trial court’s reasons for judgment, which emphasized a

liberal construction of La. R.S. 23:1021 in favor of the employee:

“Workmen’s Compensation rests upon the sound economic principle
that those who enjoy the product of a business-whether it be in the
form of goods or services-should ultimately bear the costs of the
injuries or deaths that are incident to the manufacture, preparation and
distribution of the product.” Malone and Johnson, supra, Section 32,
p. 38. These costs are then passed on to the consumer. supra, Section
32, p. 39. The alternative is to have the employee shoulder the costs
for which he is ill equipped to do, and he cannot pass the costs on to
the consumer. See also Trappey v. Lumberman’s Mut. Cas. Co. 229

21

La. 632, 86 So.2d 515 (1956); Green v. Heard Motors Co., 224 La.
1077, 71 So.2d 849 (1954). Our Supreme Court held that the
Compensation Act must be given a liberal interpretation to effecurate
[sic] its beneficent purpose of relieving workmen of the crusing [sic]
economic burden of work-connected injuries by diffusing the cost in
channels of commerce. Danielsen v. Security VanLines, Inc. 245 La.
450, 158 So.2d 609 (1963).

Id., 509 So.2d at 520 (alterations in original).

In Leger, the plaintiff-employee filed a Disputed Claim for Compensation –

Form 1008, in which she “claimed she should be receiving the maximum

compensation rate of $330.00 a week rather than the $268.75 she was receiving at

the time.” 1998-1731, p. 2, 737 So.2d at 143. “[T]he workers’ compensation judge

found that [the plaintiff-employee] was a full-time employee entitled to the

maximum compensation rate of $330.00 based on a forty[-]hour presumption of

wages” but “denied [her] request for penalties and legal fees.” Id. On appeal, the

defendant-employers asserted the workers’ compensation judge erred in finding the

plaintiff-employee was a full-time employee, and the plaintiff-employee asserted

the workers’ compensation judge erred in not awarding penalties and attorney’s

fees to her. Id. at pp. 3, 6, 737 So.2d at 144-145. On appeal, the Third Circuit

affirmed the finding that the plaintiff-employee was a full-time employee. Id. at p.

4, 737 So.2d at 144. In so ruling, the Third Circuit noted the defendant-employers

relied on the plaintiff-employee’s employment contract and pay stubs to prove that

they were reasonable in believing her position was a part-time one. Id. at p. 7, 737

So.2d at 146. The Third Circuit explained that the employment contract did not

comply with definition of part-time employment found in La. R.S. 23:1021 so as to

controvert the plaintiff-employee’s claim of full-time status. Id. at p. 8, 737 So.2d

at 157. Regarding the pay stubs, the Third Circuit explained that these “show[ed]

nothing more than that [the plaintiff-employee] did not work forty hours a week”

22

but could not “show that [she] accepted the position knowing it was part-time since

any pay checks could not have been received until after the position was accepted.”

Id. at pp. 8-9, 737 So.2d at 147. For those reasons, the Third Circuit also found the

defendant-employers failed to reasonably controvert the plaintiff-employee’s claim

that she should have been treated as a full-time employee for workers-

compensation benefits. Id.

We find Leger analogous to the matter sub judice. As previously defined,

Ms. Reissland’s situation does not comport with the definition of part-time

employee found in La. R.S. 23:1021(9). In discussing the computation of Ms.

Reissland’s benefits, Ms. Sulik testified that the “job code” listed on Ms.

Reissland’s pay stubs was “job code 100” which indicated “crew member,” and

Ms. Sulik explained that all crew members are considered part-time employees.

Even assuming arguendo that Ms. Reissland knew what the “job code 100”

designation meant, as in Leger, Ms. Reissland’s pay stubs are not evidence that she

accepted the position knowing it was part-time because she did not receive any pay

checks until after she agreed to work for Valluzzo. Further, Ms. Sulik testified that

there was a distinction between crew members and salaried managers in that

Valluzzo considered only the latter to be full-time employees, but nothing in Ms.

Reissland’s employment documents delineates this distinction nor could Ms. Sulik

point to a written document establishing same. That is, while Valluzzo classified

this as a part-time position per La. R.S. 23:1021(11), the problem is that Ms.

Reissland did not know this. The Valluzzo policy handbook defines part-time

employees as “those who are not assigned to a temporary or introductory status and

who are regularly scheduled to work less than the full-time work schedule.” Again,

whether Ms. Reissland ultimately would or would not be “regularly scheduled to

23

work less than the full-time work schedule,” was not information known to Ms.

Reissland’s at the time she accepted the position with Valluzzo. In fact, Ms.

Reissland testified during her deposition that Valluzzo informed her that she would

be a full-time employee. Valluzzo failed to offer any evidence in writing or any

testimony to show they informed Ms. Reissland that she would be a part-time

employee. As in Johnson, Ms. Reissland testified about working overtime on

multiple occasions during her tenure on the job, such that she was available to

work and worked when Valluzzo needed her. Also as in Johnson, it was incumbent

upon Valluzzo—as the employer—to define the “part-time” status of Ms.

Reissland and to establish some procedure to satisfy the criterion that she

knowingly accepted part-time employment. Valluzzo failed to do that. Therefore,

we agree with Ms. Reissland that the WCJ erred in calculating her indemnity

benefits based on her classification as a part-time worker. We remand with

instructions to the WCJ to calculate Ms. Reissland’s benefits based on La. R.S.

23:1021(13)(a)(i).

Assignment of Error Number Four: Penalties and Attorney’s Fees Pursuant to
La. R.S. 23:1201(I) and/or (F)

Next, in her fourth assignment of error, Ms. Reissland contends the WCJ

erred in failing to award multiple penalties and attorney’s fees pursuant to La. R.S.

23:1201.1(I) and/or (F). In this section of her brief, Ms. Reissland asserts five

reasons why she is entitled to certain penalties and fees. We will discuss each

reason in turn.

Ms. Reissland’s First Argument

Ms. Reissland contends that although “La. R.S. 23:1201(K)(2) provides an

employer ‘safe harbor’ protection from imposition of penalties and attorney’s fees

24

if it accepts and complies with a [workers’ compensation judge’s] preliminary

determination,” that “employer must first show it complied with La. R.S.

23:1201.1(A)-(E)” to be entitled to said preliminary determination. Ms. Reissland

argues that the WCJ legally erred in finding that Valluzzo was entitled to a PDH

under La. R.S. 23:1201.1(H) as Valluzzo failed to comply with La. R.S.

23:1201.1(A)-(E). More particularly, Ms. Reissland argues Valluzzo did not

comply with La. R.S. 23:1201.1(A) when it “failed to issue Notices of

Controversion (LWC-WC Form 1002)” upon denying Dr. Rodriguez’s request for

authorization for continued care and injections. Ms. Reissland asserts that because

Valluzzo was not entitled to the PDH in the first place, it was also not entitled to

the safe harbor provisions of La. R.S. 23:1201.1(K)(2), such that she is entitled to

penalties and attorney’s fees under that statute.

In response, Valluzzo counters that Ms. Reissland “did not file or assert any

timely objection or proffer whatsoever that [it] had not issued the appropriate LWC

Form 1002 contesting causation.” Valluzzo argues Ms. Reissland “is now

improperly and untimely asserting this objection to the PDH at the [a]ppellate level

without ever making any timely objection whatsoever at the [t]rial [c]ourt level.”

We agree with Valluzzo.

Rule 1-3 of the Uniform Rules of the Courts of Appeal provides, in pertinent

part, that “[t]he Courts of Appeal shall review issues that were submitted to the

trial court and that are contained in specifications or assignments of error, unless

the interest of justice requires otherwise.” Under that rule, “in general, issues not

argued before the trial court for decision will not be considered for the first time on

appeal, unless the interest of justice clearly requires otherwise.” Clavo v. Fara Ins.

Serv., 2018-0727, p. 7 (La. App. 4 Cir. 1/30/19), 363 So.3d 286, 291 (first citing

25

Hurst v. Dep’t of Police, 2014-0119, p. 6 (La. App. 4 Cir. 7/23/14), 146 So.3d 857,

860-61; and then citing Uniform Rules, Courts of Appeal, Rule 1-3). In discussing

the “interest of justice” exception, the Third Circuit has explained that it “is not

without limitation” and listed the following “limited circumstances” when courts

have applied it:

(a) when fundamental constitutional due process is involved; (b) when
a jurisdictional concern is implicated; (c) when a trial judge may have
had improper ex parte communication; (d) where the proper resolution
of an issue is beyond a doubt or where injustice might occur; (e) when
an incorrect law has been applied; and (f) when a pure question of law
is involved and the failure to consider it would result in the
miscarriage of justice.

Bayou Bridge Pipeline, LLC v. 38.00 Acres, 2019-565, p. 9 (La. App. 3 Cir.

7/15/20), 304 So.3d 529, 539.

If the interest of justice exception does not apply and a party presents an

argument for the first time on appeal, then that party “seek[s] to introduce a

completely new issue to th[e] case,” one which “was neither presented . . . to the

trial court, nor ruled upon by the trial court.” McLane v. S., Inc. v. Bridges, 2013-

1819 (La. App. 1 Cir. 11/3/14), 2014 WL 5588893, at *4. Were an appellate court

to consider that new issue, it would be equivalent to permitting a party to shift to a

new argument and to “a better horse to ride” at the appellate level after “[h]aving

met with a lack of success at the trial court with” her original argument. Id., at *4.

This is unfair to the opposing party and presents potential judicial inefficiency

problems by not permitting the trial court to resolve issues in the first place. In

discussing Uniform Rule 1-3, the Louisiana First Circuit Court of Appeal has

explained that “[La.] C.C.P. art. 2164 provides authority for [an appellate] court to

take up an issue raised . . . for the first time under special circumstances,” such as

“a workers’ compensation case, [or] one in which a party is appearing without the

26

benefit of legal counsel.” Id. (citing Pinkins v. Cardinal Wholesale Supply, Inc.,

619 So.2d 52, 55 (La. 1993)). Nonetheless, under the discretion vested in it by

Uniform Rule 1-3 and under La. C.C.P. art. 2164, an appellate court may decline to

consider an issue raised for the first time on appeal by a workers’ compensation

claimant. See Allen v. Affordable Home Furnishings, 2013-176, p. 4 (La. App. 3

Cir. 11/13/13), 130 So.3d 345, 347-48; James v. Formosa Plastics Corp. of La.,

1995-1749, p. 5 (La. App. 1 Cir. 4/4/96), 672 So.2d 319, 322.

Turning to the matter sub judice, Ms. Reissland did not present the issue of

whether Valluzzo violated La. R.S. 23:1201.1(A) by failing to issues Notices of

Controversion to the WCJ, nor did the WCJ rule upon same. Rather, in her Motion

to Strike, Ms. Reissland contended Valluzzo failed to demonstrate it complied with

La. R.S. 23:1201.1(A) insofar as Valluzzo did not show that it sent a Notice of

Initial Payment (LWC-WC Form 1002) to Ms. Reissland on the same day that it

first issued compensation. The WCJ denied Ms. Reissland’s Motion to Strike on

this basis. Thus, having met with a lack of success before the WCJ, Ms. Reissland

now seeks to introduce a new issue and shift her argument on appeal. Using the

examples from Bayou Bridge Pipeline, LLC, “as guideposts,” we do not find that

the issue of whether Valluzzo complied with the requirements of La. R.S.

23:1201.1(A) insofar as issuing Notices of Controversion falls within the

parameters of the “interest of justice” exception. 2019-565, p. 9, 304 So.3d at 539.

Nor do we find that the circumstances of this case warrant us exercising our

discretion under La. C.C.P. art. 2164 and ruling on Ms. Reissland’s new argument.

Accordingly, we do not consider Ms. Reissland’s argument that the WCJ legally

erred in finding Valluzzo was entitled to a PDH even though Valluzzo failed to

issue Notices of Controversion.

27

Ms. Reissland’s Second Argument

In her second argument as to why the WCJ erred in failing to award multiple

penalties and attorney’s fees, Ms. Reissland contends Valluzzo forfeited the safe

harbor protections of La. R.S. 23:1201.1(K)(2) when it failed to comply with La.

R.S. 23:1201.1(J)(4). Specifically, Ms. Reissland asserts Valluzzo forfeited the

protections because Ms. Sulik testified at the PDH that she used the company

handbook when determining Ms. Reissland’s compensation benefits, yet Valluzzo

did not provide the company handbook to Ms. Reissland’s counsel within ten days

of her request for a PDH.

Louisiana Revised Statutes 23:1201.1 is titled “Controversion of

compensation and medical benefits.” In terms of the safe harbor protections

discussed by Ms. Reissland, La. R.S. 23:1201.1(K)(2) states that “[a]ny employer

or payor who accepts and complies with the workers’ compensation judge’s

determination within ten calendar days, shall not be subject to any penalty or

attorney fees arising out of the original notice which was the subject of the

preliminary hearing.” Turning to the section of the statute that Ms. Reissland

contends Valluzzo violated, La. R.S. 23:1201.1(J)(4) provides:

Any employer or payor requesting a preliminary determination
hearing shall produce all documentation relied on by the employer or
payor in calculating, modifying, suspending, terminating, or
controverting the employee’s benefits. These documents shall be
disclosed to the employee or the employee’s representative within ten
days of the request for the preliminary determination hearing.

Delineating the result of failing to comply with the statute, La. R.S. 23:1201.1(L)

states:

Notwithstanding any provision in this Section to the contrary, the
failure to comply with any provision of this Section shall not itself be
considered a failure to reasonably controvert benefits; however,

28

failure of the employer or payor to comply shall result in loss of
penalty and attorney fee protections provided in this Section.

In the matter sub judice, the record establishes Valluzzo first requested a

PDH on September 19, 2023, when it filed its Answer. Nonetheless, Valluzzo did

not provide a copy of the company handbook to Ms. Reissland’s counsel until

November 15, 2023. Thus, as Ms. Reissland correctly points out, Valluzzo violated

La. R.S. 23:1201.1(J)(4). As Ms. Reissland also accurately explains, La. R.S.

23:1201.1(L) mandates the loss of the penalty and attorney’s fee protections

provided in La. R.S. 23:1201.1(K)(2) when an employer has failed to comply with

any part of the statute. Ms. Reissland is therefore correct that Valluzzo lost the

protections from penalties and attorney’s fees provided by La. R.S.

23:1201.1(K)(2). This merely means, however, that Valluzzo lost the protections

from penalties and attorney’s fees, not that Ms. Reissland is automatically entitled

to same absent us finding a basis for such an award. See Hendrick v. Patterson,

47,668, p. 16 (La. App. 2 Cir. 1/16/13), 109 So.3d 475, 484-85 (holding that

“[a]ttorney fees and penalties are never automatically assessed against the defeated

party, but rather are awarded only when the statutory requirements for such are

met”). Therefore, we will continue our consideration of Ms. Reissland’s arguments

as to why she is entitled to penalties and attorney’s fees.

Ms. Reissland’s Third Argument

Next, Ms. Reissland contends that when Valluzzo terminated her benefits

after she refused to sign a HIPPA authorization to allow Valluzzo’s counsel to

have access to her medical records prior to the beginning of litigation, Valluzzo’s

termination of her benefits was arbitrary, capricious, and without probable cause.

As explained by Ms. Reissland in her brief, after she signed a HIPPA authorization

29

permitting Valluzzo’s claims adjuster to access her medical records, Valluzzo then

contacted her and asked her to execute HIPPA authorizations in favor of its

counsel “as the authorized designee of Valluzzo.” Ms. Reissland states in her brief

that she objected to Valluzzo’s counsel having access to her medical records before

the case was even in litigation, so she “revoked all prior authorizations,” after

which Valluzzo terminated her workers’ compensation indemnity benefits.

(Emphasis added.) Ms. Reissland argues that, “[s]imply put, there is no legal basis

for suspending benefits when a claimant refuses to allow an employer’s attorney

access to her medical records.”

Regarding the “Release of medical records and information,” La. R.S.

23:1127(B) provides:

A. It is the policy for the efficient administration of the
workers’ compensation system that there be reasonable access to
medical information for all parties to coordinate and manage the care
for the injured worker and to facilitate his return to work.

B. (1) In any claim for compensation, a health care provider
who has at any time treated the employee related to the compensation
claim shall release any requested medical information and records
relative to the employee’s injury, to any of the following persons:

(a) The employee, his agent, or his representative.

(b) A licensed and approved vocational rehabilitation counselor
assigned to the employee’s claim.

(c) Another health care provider examining the employee.

(d) The employer, his agent, or his representative.

(e) The employer’s workers’ compensation insurer or its agent
or representative.

(2) Any information relative to any other treatment or condition
shall be available to the employer or his workers’ compensation
insurer by subpoena or through a written release by the claimant.

30

Ms. Reissland contends Valluzzo violated La. R.S. 23:1201(I) by terminating her

benefits after she refused to sign a written release. That statute provides:

Any employer or insurer who at any time discontinues payment of
claims due and arising under this Chapter, when such discontinuance
is found to be arbitrary, capricious, or without probable cause, shall be
subject to the payment of a penalty not to exceed eight thousand
dollars and a reasonable attorney fee for the prosecution and
collection of such claims.

La. R.S. 23:1201(I).

As explained by the Louisiana First Circuit Court of Appeal in discussing

La. R.S. 23:1201(I), “Arbitrary and capricious behavior consists of willful and

unreasoning action, without consideration and regard for facts and circumstance[s]

presented, or of seemingly unfounded motivation. The crucial inquiry is whether

the employer has [an] articulable and objective reason for discontinuing benefits at

the time it took that action.” Life Flight of New Orleans v. Homrighausen, 2005-

2538, p. 8 (La. App. 1 Cir. 12/28/06), 952 So.2d 45, 52 (citing Authement v. Wal-

Mart, 2002-2434, p. 11 (La. App. 1 Cir. 9/26/03), 857 So.2d 564, 574). The

“[s]tatutory provisions permitting the assessment of penalties and attorney fees for

nonpayment of workers’ compensation benefits are penal in nature,” so they “must

be strictly construed.” New Line Environmental & Canal HR v. Davis, 2015-1885,

p. 10 (La. App. 1 Cir. 10/7/16), 205 So.3d 921, 928. With these precepts in mind,

we consider whether Valluzzo’s termination of Ms. Reissland’s benefits was

arbitrary, capricious, or without probable cause.

Though Ms. Reissland argues Valluzzo had “no legal basis for suspending

[her] benefits,” such that it acted arbitrarily, capricious, and without probable

cause, under the circumstances of this case, we disagree. When Ms. Reissland

refused to sign a HIPPA in favor of Valluzzo’s counsel, she also notably revoked

31

all prior authorizations as admitted in her brief to this Court. As quoted above,

within the workers’ compensation scheme, La. R.S. 23:1127 seeks to establish

“reasonable access to medical information for all parties.” La. R.S. 23:1127(A)

(emphasis added). Among those to whom “a health care provider who has at any

time treated the employee related to the compensation claim shall release any

requested medical information and records relative to the employee’s injury” are

“[t]he employer, his agent, or his representative,” as well as “[t]he employer’s

workers’ compensation insurer or its agent or representative.” La. R.S.

23:1127(B)(1)(d-e). When Ms. Reissland revoked her prior authorizations, this

included authorizations that permitted Valluzzo’s claims adjuster to access her

medical records. Ms. Reissland thereby denied Valluzzo’s “workers’ compensation

insurer or its agent or representative” access to any of her records, including those

related to her compensation claim and alleged injury, in contravention of La. R.S.

23:1127(B)(1)(e). As a result of Ms. Reissland revoking all prior authorizations,

Valluzzo itself also no longer had access to Ms. Reissland’s medical records

despite the employer being among those to whom a health care provider is to

“release any requested medical information and records relative to the employee’s

injury.” La. R.S. 23:1127(B)(1)(d). Upon Ms. Reissland revoking all prior

authorizations, Valluzzo and its claims adjuster could no longer “coordinate and

manage” her claim, let alone investigate it, thereby providing Vallluzo with an

“articulable and objective reason for discontinuing benefits.” Based on the facts of

this case, we find Valluzzo’s decision to terminate Ms. Reissland’s benefits—in

the face of a lack of access to her medical records regarding treatment related to

the alleged accident and injury forming the basis of her claim—did not rise to the

32

level of arbitrary, capricious, or without probable cause. Accordingly, we disagree

with Ms. Reissland that she is entitled to attorney’s fees under La. R.S. 23:1201(I).

In the alternative, Ms. Reissland “contends she is entitled to a $2,000.00

penalty pursuant to La. R.S. 23:1201(F) for [Valluzzo’s] failure to reasonably

controvert her benefits on those grounds.” Apart from that one statement in her

brief, Ms. Reissland provides no argument in support of that claim. Regarding the

appellant brief, Rule 2-12.4(B)(4) of the Uniform Rules of the Courts of Appeal

instructs that “[a]ll assignments of error and issues for review shall be briefed. The

court may deem as abandoned any assignment of error or issue for review which

has not been briefed.” (Emphasis added.) As recently explained by the Louisiana

Second Circuit Court of Appeal, “A mere statement of an assignment of error in a

brief does not constitute the briefing of the assignment of error.” Young v. Woods,

56,328, p. 12 (La. App. 2 Cir. 7/16/25), 418 So.3d 475, 482 (citing State v. Davis,

52,517 (La. App. 2 Cir. 5/22/19), 273 So. 3d 670). We therefore exercise our

discretion under Uniform Rule 2-12.4 and consider Ms. Reissland’s argument of

entitlement to a penalty under La. R.S. 23:1201(F) abandoned because she did not

brief this issue.

Ms. Reissland’s Fourth Argument

Next, Ms. Reissland asserts that because Valluzzo improperly classified her

as a part-time worker in calculating her benefits, she is entitled to a $2,000 penalty

under La. R.S. 23:1201(F). That statute provides, in pertinent part:

F. Except as otherwise provided in this Chapter, failure to
provide payment in accordance with this Section . . . shall result in the
assessment of a penalty in 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 or such consent is
withheld, together with reasonable attorney fees for each disputed

33

claim; however, the fifty dollars per calendar day penalty shall not
exceed a maximum of two thousand dollars in the aggregate for any
claim. The maximum amount of penalties which may be imposed at a
hearing on the merits regardless of the number of penalties which
might be imposed under this Section is eight thousand dollars. An
award of penalties and attorney fees at any hearing on the merits shall
be res judicata as to any and all claims for which penalties may be
imposed under this Section which precedes the date of the hearing.
Penalties shall be assessed in the following manner:

....

(2) This Subsection shall not apply if the claim is reasonably
controverted or if such nonpayment results from conditions over
which the employer or insurer had no control.

La. R.S. 23:1201(F)(2).

To reasonably controvert a claim as that phrase is used in La. R.S.

23:1201(F)(2), “the defendant[-employer] must have some valid reason or

evidence upon which” it based its decision. Brown v. Texas-LA Cartage, Inc.,

1998-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890. In determining whether the

employer has such a reason or such evidence, the “court must ascertain whether the

employer or his insurer engaged in a nonfrivolous legal dispute or possessed

factual . . . information to reasonably counter the factual . . . information presented

by the claimant[-employee].” Id. In general, Louisiana courts do not impose

“penalties . . . for simple miscalculations,” but the courts do impose “penalties and

attorney’s fees . . . where the insurer gather[ed] incomplete data in preparing the

claim.” Richard v. HSLI & Touro Infirmary, 2012-873, p. 10 (La. App. 5 Cir.

5/23/13), 119 So.3d 617, 623 (citing Stegall v. J. & J Exterminating, 1994-1279

(La. App. 3 Cir. 3/1/95), 651 So.2d 400). As recently explained by the Louisiana

First Circuit Court of Appeal, “[t]he fact that [a defendant-employer] may have

mistakenly miscalculated the amount due or . . . later paid the amount due after it

was requested by [the plaintiff-employee’s] counsel does not exempt [the

34

defendant-employer] from penalties and/or attorney fees.” Bonvillian v. Great Am.

Alliance Ins. Co., 2024-1025, p. 9 (La. App. 1 Cir. 5/22/25), 417 So.3d 731, 738.

For the reasons discussed in the section of this Opinion reversing the WCJ’s

finding that Ms. Reissland was a part-time employee, we also find that Valluzzo

failed to reasonably controvert Ms. Reissland’s claim that Valluzzo should have

calculated her benefits based on her being a full-time employee. Valluzzo also did

not present evidence regarding any extenuating circumstances over which it had no

control so as to excuse its decision to calculate Ms. Reissland’s benefits based on

her being a part-time employee as opposed to a full-time one. Instead, based on the

record, Valluzzo merely gathered incomplete information in determining Ms.

Reissland’s benefits by failing to ascertain whether Ms. Reissland had knowingly

accepted employment that customarily provided for less than forty hours per week.

Therefore, we remand this matter for the WCJ to determine and assess “a penalty

in 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,” noting that “the fifty dollars per calendar day penalty shall not

exceed a maximum of two thousand dollars in the aggregate.” La. R.S. 23:1201(F).

Ms. Reissland’s Fifth Argument

Ms. Reissland further argues her attorney is entitled to attorney’s fees under

La. R.S. 23:1201(I) and/or (F). Other than listing La. R.S. 23:1201(I) in the

heading of this subsection of her brief, Ms. Reissland does not further brief its

applicability. Elsewhere in this section of her brief regarding penalties and

attorney’s fees, Ms. Reissland contended she was entitled to attorney’s fees under

La. R.S. 23:1201(I) because Valluzzo was arbitrary, capricious, and without

35

probable cause in terminating her benefits after she refused to sign a HIPPA in

favor of Valluzzo’s counsel and revoked her prior authorizations. We have already

discussed why Valluzo’s decision to terminate Ms. Reissland’s benefits was not

arbitrary, capricious, and without probable cause in light of Ms. Reissland

preventing Valluzo from having access to her medical records so as to investigate,

coordinate, and manage her claim contrary to La. R.S. 23:1107. Because Ms.

Reissland’s brief provides no other information or argument as to the applicability

of La. R.S. 23:1201(I) or how this section of her brief differs from the prior one,

we decline to consider the matter further. See Rule 2-12.4, Uniform Rules, Courts

of Appeal.

Likewise, Ms. Reissland provides no additional information regarding how

her contention that her counsel is entitled to attorney’s fees under La. R.S.

23:1201(F) in this subsection of her brief differs from her contentions elsewhere in

her brief. In the prior subsection, we already concluded that Ms. Reissland is

entitled to attorney’s fees because Valluzzo improperly designated her a part-time

employee in computing her benefits. In light of Ms. Reissland’s failure to brief her

alleged entitlement to additional attorney’s fees under La. R.S. 23:1201(F), we

exercise our discretion under Uniform Rule 2-12.4 and do not further consider this

matter.

Assignment of Error Number Five: Cost Reimbursement Pursuant to La. R.S.
23:1310.9 and Judicial Interest Pursuant to La. R.S. 23:1201.3(A)

Finally, Ms. Reissland asserts the WCJ “committed legal error in failing to

award [her] cost reimbursement pursuant to La. R.S. 23:1310.9 and [in] failing to

award judicial interest on all penalties, costs, and attorney’s fees awarded.” Ms.

Reissland contends that because she “incurred costs in obtaining medical records,

36

depositions, filing fees, and preparation of the trial record herein,” she seeks

reimbursement of said “costs in accordance with La. R.S. 23:1310.9 to be

determined by a [r]ule to [t]ax [c]osts.” Additionally, Ms. Reissland seeks judicial

interest on past due indemnity benefits, medical benefits, penalties, attorney’s fees

and costs pursuant to La. R.S. 23:1201.3(A).

We begin with Ms. Reissland’s request for costs under La. R.S. 23:1310.9.

That statute provides:

If the workers’ compensation judge before which any proceedings for
compensation or concerning an award of compensation have been
brought, under the Workers’ Compensation Act, determines that such
proceedings have not been brought on a reasonable ground, or that
denial of benefits has not been based on a reasonable ground, the
workers’ compensation judge shall assess the total cost of the
proceedings to the party who has brought them or the party who has
unreasonably denied payment of benefits.

La. R.S. 23:1310.0. A workers’ compensation judge has broad discretion in his

assessment of costs and fees under La. R.S. 23:1310.9. Guillory v. St. Michael

PFU, LLC, 2023-674, p. 8 (La. App. 3 Cir. 4/17/24), 389 So.3d 140, 146-147

(citations omitted). On appeal, the appellate court considers whether the workers’

compensation judge abused that discretion. Id. In Guillory, the Third Circuit

explained that while La. R.S. 23:1310.9 “mandates the assessing of costs in

situations when the proceedings have not been brought on a reasonable ground or

when the denial of benefits has not been based on a reasonable ground,” the

applicability of that statute is contingent on the trial court actually making one of

the foregoing determinations. Id. at p. 8, 389 So.3d at 146. That is, if “[t]he trial

court did not make such a determination,” then “that statute is inapplicable.” Id. In

the matter sub judice, the WCJ made no such determination as to the

unreasonableness of Valluzzo’s denial of benefits, so this statute is inapplicable.

37

Thus, we disagree with Ms. Reissland that she is entitled to cost reimbursement

under La. R.S. 23:1310.9 and deny her request for same.

We next turn to Ms. Reissland’s request for judicial interest under La. R.S.

23:1201.3(A) “on all penalties, costs, and attorney’s fees awarded.” Previously, we

concluded Ms. Reissland is not entitled to costs under La. R.S. 23:1210.9, and

elsewhere throughout this Opinion we have not awarded costs to Ms. Reissland.

Accordingly, there are no costs for which we must consider whether to attach

judicial interest.

In support of her contention that a court can award judicial interest on

penalties and attorney’s fees when specifically prayed for, Ms. Reissland cites to

Smith v. Quarles Drilling Co., 2004-0179 (La. 10/29/04), 885 So.2d 562. As

explained by the Louisiana Supreme Court in Smith, “Interest on an attorney fee

award is not ‘allowed by law’ pursuant to [La.] R.S. 23:1201.3.” 2004-0179, p. 9,

885 So.2d at 568 (citing La. C.C.P. art. 1921). This is because “penalties and

attorney[’s] fees in workers’ compensation cases are not considered

compensation.” Day v. Superior Derrick Servs., 2011-749, p. 14 (La. App. 3 Cir.

12/7/11), 80 So.3d 654, 665 (citing Burns v. Interstate Brands Corp., 2009-705

(La. App. 3 Cir. 2/3/10) 30 So.3d 271). Therefore, as Ms. Reissland correctly

observes, “in order to receive interest on penalties and attorney fees, a party must

pray for interest in his pleadings.” Id. Ms. Reissland did so, such that she is entitled

to judicial interest on the penalty and attorney’s fees we awarded under La. R.S.

23:1201(F) in light of Valluzzo’s failure to reasonably controvert her claim that

she was entitled to full-time status for purposes of computing her benefits.

Within the workers’ compensation scheme, an award of compensation is

distinct from an award of penalties and attorney’s fees. Sharbono v. Steve Lang &

38

Son Loggers, 1997-0110, p. 6 (La. 7/1/97), 696 So.2d 1382, 1386. That is, “fees

and penalties are not ‘compensation’ within the meaning of the statute.” Id. As

such, the Louisiana Supreme Court has held that the date on which interest attaches

on these respective awards also differs. See generally id. While interest attaches to

compensation on the date of demand, interest attaches to penalties and attorney’s

fees on the date of judgment. Id. at pp. 10-11 (La. 7/1/97), 696 So.2d 1382, 1388-

89. As explained in Sharbono:

Because attorney’s fee awards depend for their very existence
upon a discretionary finding . . ., any amount of attorney’s fees
awarded to the victor is “due” only from the date of judgment. Prior to
that time, the victor was not entitled to those funds. Because the losing
party did not deprive the victor of the use of funds to which the victor
was entitled, no prejudgment interest may be calculated on the award
of attorney’s fees. Rather, post[-]judgment interest on that amount
may be calculated only from the date the debt came into being and
thus became due to the date it is paid. To hold otherwise would be to
unfairly compensate the victor, and penalize the loser, for a
deprivation which never took place. . . .

Finally, there is the matter of interest on penalties. Both federal
and state jurisprudence is nearly uniform in holding that penalty
interest is entirely of the post-judgment variety, and thus is calculated
only from the date the penalties are awarded until the date they are
paid. . . .

Just as with attorney’s fees awards, penalties are never
automatically assessed against the defeated party, but rather are
awarded only when the statutory requirements for such are met. . . .
Because awards of penalties and attorney’s fees are not automatic . . .,
they come due, if at all, only on the date of their award . . .; thus, such
awards may not earn interest until after that date.

Id. (footnotes omitted). In light of the foregoing jurisprudence, Ms. Reissland is

entitled to judicial interest on the penalty and attorney’s fees that the WCJ will

assess under La. R.S. 23:1201(F)—for Valluzzo’s failure to reasonably controvert

her claim that she was entitled to full-time status for purposes of computing her

benefits—upon the WCJ determining same.

39

Attorney’s Fees and Costs for Appeal

Ms. Reissland also contends she “is entitled to additional attorney’s fee[s]

for additional work performed in pursuing this appeal and for the costs of the

appeal to be assessed against” Valluzzo. Louisiana Code of Civil Procedure Article

2164 provides, in pertinent part:

The appellate court shall render any judgment which is just, legal, and
proper upon the record on appeal. The court may award damages,
including attorney fees, for frivolous appeal or application for writs,
and may tax the costs of the lower or appellate court, or any part
thereof, against any party to the suit, as in its judgment may be
considered equitable.

An appellate court has “discretion to award . . . attorney’s fees for appellate work.”

Chandler v. Oachita Par. Sheriff’s Office, 48,179, pp. 15-16 (La. App. 2 Cir.

8/7/13), 121 So.3d 1216, 1226 (citing Nesbitt v. Nesbitt, 46,514 (La. App. 2 Cir.

9/21/11), 79 So.3d 347). In deciding whether to exercise aforesaid discretion we

are mindful that “[a]wards of attorney[’s] fees in workers’ compensation cases are

essentially penal in nature, and are intended to deter indifference and undesirable

conduct by employers and insurers toward injured employees.” Smith, 2004-0179,

p. 6, 885 So.2d at 566 (citations omitted). Nonetheless, while “the benefits in the

Workers’ Compensation Act are to be liberally construed, penal statutes are to be

strictly construed.” Id. at p. 7, 885 So.2d at 566 (citations omitted). Even if a

plaintiff-employee largely prevails on appeal, the discretion accorded to the

appellate court permits the court to decline to award attorney’s fees. See King v.

Gulf Coast Constr., Inc., 1994-1019, p. 3 (La. App. 4 Cir. 12/28/94), 648 So.2d

498, 500. Considering the facts of this case and a lack of “indifference and

undesirable conduct” by Valluzzo toward Ms. Reissland, we decline to exercise

our discretion to award attorney’s fees for work on appeal to Ms. Reissland.

40

Turning to Ms. Reissland’s request for costs, “A court can tax costs against

any party in any manner it considers equitable.” Latour v. Steamboats, LLC, 2023-

00027, p. 17 (La. 10/20/23), 371 So.3d 1026, 1041 n.10 (first citing La. C.C.P. art.

1920; and then citing La. C.C.P. art. 2164). This is true of both the trial and

appellate courts. Danna v. Ritz-Carlton Hotel Co., 2020-0116, pp. 37-38 (La. App.

4 Cir. 3/24/21), 365 So.3d 679, 705 (first citing La. C.C.P. art. 1920; then citing

La. C.C.P. art. 2164; and then citing Scamardo v. Dunaway, 1994-545, p. 11 (La.

App. 5 Cir. 2/15/95), 650 So.2d 417, 422). However, considering the facts of this

case, we decline to assess Valluzzo with the costs of this appeal.

Valluzzo’s Assignments of Error

As delineated previously, Valluzzo also asserted assignments of error in its

brief to this Court. In its first assignment of error, Valluzzo contends the WCJ

erred in failing to award all attorney’s fees it incurred as part of the January 13,

2025 restitution judgment pursuant to La. R.S. 23:1208. Our reversal of the WCJ’s

finding that Ms. Reissland violated La. R.S. 23:1208 and vacatur of the January 13,

2025 judgment renders this assignment of error moot.

In its second assignment of error, Valluzzo asserts the WCJ manifestly erred

in failing to award attorney’s fees and costs pursuant to La. R.S. 23:1310.9 plus

judicial interest on the restitution award pursuant to La. R.S. 23:1201.3. Beginning

with the latter, we have vacated the WCJ’s January 13, 2025 restitution judgment,

thereby rendering this assignment of error moot. Regarding attorney’s fees and

costs under La. R.S. 23:1310.9, Valluzzo contends that “[a]ppellate courts have

recognized that costs may be awarded under La. R.S. 23:1310.9 when fraud is

found under La. R.S. 23:1208.” However, we have reversed the WCJ’s finding of a

41

violation of La. R.S. 23:1208, such that Valluzzo’s contention it is entitled to fees

and costs for same is now moot.

Finally, in its third assignment of error, Valluzzo argues this Court should

modify and revise the WCJ’s January 13, 2025 restitution judgment to award

Valluzzo “all additional damages and costs, including penalties and attorney’s fees

upon the running of all deadlines, pursuant to La. R.S. 23:1201(G).” Louisiana

Revised Statutes 23:1201(G) provides:

If any award payable under the terms of a final, nonappealable
judgment is not paid within thirty days after it becomes due, there
shall be added to such award an amount equal to twenty-four percent
thereof or one hundred dollars per day together with reasonable
attorney fees, for each calendar day after thirty days it remains unpaid,
whichever is greater, which shall be paid at the same time as, and in
addition to, such award, unless such nonpayment results from
conditions over which the employer had no control. No amount paid
as a penalty under this Subsection shall be included in any formula
utilized to establish premium rates for workers' compensation
insurance. The total one hundred dollar per calendar day penalty
provided for in this Subsection shall not exceed three thousand dollars
in the aggregate.

Again, Valluzzo is seeking additional amounts stemming from the now-vacated

January 13, 2025 restitution judgment. Because we have vacated that judgment,

Valluzzo’s third assignment of error is now moot too. In sum, all three of

Valluzzo’s assignments of error in its appellee brief have been rendered moot by

our prior holdings. Next, we consider Valluzzo’s Answer.

Valluzzo’s Answer

As previously stated, Valluzzo filed an Answer with this Court wherein it

seeks modification of certain aspects of the WCJ’s December 5, 2024 judgment

and the WCJ’s January 13, 2025 judgment, as well as frivolous appeal damages. In

its Answer, Valluzzo has six requests. Because the first, third, and fourth requests

42

are related, we will discuss those together before moving onto the second, fifth,

and sixth requests.

Requests Numbers 1, 3, and 4

In its first request, Valluzzo seeks review of the WCJ’s failure to award

Valluzzo all attorney’s fees incurred to be made part of the restitution award

pursuant to La. R.S. 23:1208(C)(4). Then, in its third request, Valluzzo asks for

judicial interest on the restitution award pursuant to La. R.S. 23:1201.3. In its

fourth request, Valluzzo prays for additional costs, including penalties and attorney

fees, pursuant to La. R.S. 23:1201(G) for Ms. Reissland’s failure to pay any

amount required by the WCJ’s January 13, 2025 judgment. We already addressed

Valluzzo’s request pursuant to La. R.S. 23:1201(G) in our resolution of Valluzzo’s

assignments of error. That request and Valluzzo’s first and third requests are for

additional amounts stemming from the January 13, 2025 restitution judgment.

Because we vacated the WCJ’s January 13, 2025 judgment, we deny Valluzzo’s

first, third, and fourth requests as moot insofar as they are offshoots of the now

vacated restitution judgment.

Request Number 2

In its second request, Valluzzo asserts the WCJ erred in failing to award the

total requested attorney’s fees and costs pursuant to La. R.S. 23:1310.9. Valluzzo

asks this Court to modify the WCJ’s January 13, 2025 judgment so as to award

such fees and costs under the statute. However, as previously explained in

addressing Valluzzo’s assignments of error, Valluzzo seeks fees and costs under

La. R.S. 23:1310.9 pursuant to Ms. Reissland’s violation of La. R.S. 23:1208. We

reversed the WCJ’s finding of a violation of La. R.S. 23:1208, so Valluzzo’s

contention that it is entitled to fees and costs for same is now moot.

43

Request Number 5

Next, Valluzzo asserts the WCJ erred in certain parts of the December 5,

2024 judgment, specifically in finding that Ms. Reissland proved the alleged

workplace accident of May 4, 2023; proved she sustained a work-related injury;

proved she sustained injuries related to the work accident; and proved a causal

connection between the accident and her injuries. Additionally, Valluzzo contends

the WCJ erred in finding Valluzzo did not prove entitlement to the intoxication

presumption due to Ms. Reissland’s delay in submitting to its drug testing requests.

Further, Valluzzo asserts the WCJ erred in finding Valluzzo failed to prove Ms.

Reissland’s intoxication was the cause of her work accident. Valluzzo asks this

Court to modify these aspects of the WCJ’s December 5, 2024 judgment.

Of note, Valluzzo did not provide any explanation or reasons in its Answer

as to why this Court should amend these parts of the December 5, 2024 judgment.

Louisiana Code of Civil Procedure Article 2133(A) states, in pertinent part, that

“[t]he answer filed by the appellee shall be equivalent to an appeal on his part from

any portion of the judgment rendered against him in favor of the appellant and of

which he complains in his answer.” Because Valluzzo’s Answer constitutes an

appeal, we will treat the answer like an appellant brief. Regarding the appellant

brief, Rule 2-12.4(B)(4) of the Uniform Rules of the Courts of Appeal instructs

that “[a]ll assignments of error and issues for review shall be briefed. The court

may deem as abandoned any assignment of error or issue for review which has not

been briefed.” (Emphasis added.) In St. Germain v. St. Germain, this Court applied

Uniform Rule 2-12.4(B)(4) to an appellee’s answer. 2020-0146, p. 2 (La. App. 4

Cir. 3/17/21), 315 So.3d 443, 445 n.1. Specifically, the Court deemed appellee’s

request for “costs and attorney’s fees for having to oppose a frivolous appeal” as

44

abandoned because “[c]ounsel did not brief the issue on appeal.” Id. (citing

Uniform Rules, Courts of Appeal, Rule 2-12.4(B)(4)). Though Rule 2-12.4(B)(4)

gives the appellate court discretion in deciding whether to deem an issue

abandoned, as in St. Germain, we decline to exercise our discretion and review

these parts of the judgment in light of Valluzzo’s failure to brief its argument as to

their invalidity. To act otherwise, i.e., to analyze and discuss the validity of these

parts of the judgment, permits a defendant-appellee like Valluzzo to throw a

“kitchen sink” argument at this Court without any effort on its part. There are no

extenuating circumstances (e.g., a pro se party) that justify Valluzzo’s failure to

brief these issues. Accordingly, we deny Valluzzo’s answer in this regard.

Request Number 6

Finally, Valluzzo requests “all further costs, expenses, and attorney’s fees

incurred in responding to this appeal” pursuant to La. C.C.P. art. 2133(A).

Louisiana Code of Civil Procedure Article 2133 delineates when an appellee must

answer an appeal. It provides, in pertinent part, that “[a]n appellee shall not be

obliged to answer the appeal unless he desires to have the judgment modified,

revised, or reversed in part or unless he demands damages against the appellant.”

La. C.C.P. art. 2133(A). Further, La. C.C.P. art. 2164 provides:

The appellate court shall render any judgment which is just, legal, and
proper upon the record on appeal. The court may award damages,
including attorney fees, for frivolous appeal or application for writs,
and may tax the costs of the lower or appellate court, or any part
thereof, against any party to the suit, as in its judgment may be
considered equitable.

In interpreting La. C.C.P. art. 2164, this Court recently held that “unless the appeal

is unquestionably frivolous, damages will not be granted” as “[a]ppeals are always

favored” and “frivolous appeal damages may result in a chilling effect . . . on the

45

appellate process.” Hose v. O’Connell, 2024-0493, p. 43 (La. App. 4 Cir. 5/8/25),

___ So.3d ___, ___, 2025 WL 1341639, at *21 (as amended on rehearing) (internal

quotation marks omitted) (quoting Alexander v. La. State Bd. of Priv. Investigator

Exam’rs, 2023-0159, p. 41 (La. App. 4 Cir. 10/25/24), 409 So.3d 37, 66). This

Court has also held that “[b]ecause the statute [La. C.C.P. art. 2164] allowing the

imposition of damages for frivolous appeal is penal in nature, it must be strictly

construed in favor of the appellant.” Id. at p. 44, ___ So.3d at ___, 2025 WL

1341639, at *21 (quoting Forrester v. Bruno, 2023-0336, 0335, p. 12 (La. App. 4

Cir. 12/7/23), 380 So.3d 598, 606). If there is any “[d]oubt as to whether an appeal

is frivolous,” then the appellate court should resolve the issue “in the appellant’s

favor.” Id. (quoting Forrester, 2023-0336, 0335, p. 13, 380 So.3d at 607).

An appeal is a frivolous one if it “does not present a substantial legal

question, if the sole purpose of the appeal is delay, or if the appealing counsel does

not seriously believe the view of the law that he advocates.” Id. (quoting

Alexander, 2023-0159, 409 So.3d at 67). Therefore, an appellate court will award

“[d]amages for a frivolous appeal . . . if the appellant is attempting to delay the

action, if the appellant does not believe what he is advocating, or if the appeal

presents no substantial legal question.” Id. For an award of frivolous appeal

damages to be “proper,” the appellant’s “proposition advocated” must be “so

ridiculous or so opposed to rational thinking that it is evident beyond any doubt

that it is being deliberately professed for ulterior purposes.” Id. “Unless the appeal

meets one of those criteria, the appellate court will not award frivolous appeal

damages even if the ‘appeal lacks serious legal merit.’” Id. (quoting Forrester,

2023-0336, 0335, p. 13, 380 So.3d at 607).

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Applying the rule of strict construction against Valluzzo and considering the

record in this case, we conclude Ms. Reissland’s appeal is not frivolous. The

record does not support a finding that Ms. Reissland filed her appeal for the

purpose of delaying the action; her counsel did not seriously believe the law or

position advocated; or the appeal presented no substantial legal question(s).

Therefore, this matter does not meet the requirements of a frivolous appeal. We

deny Valluzzo’s request for costs, expenses, and attorney’s fees pursuant to La.

C.C.P. art. 2133(A).

DECREE

For the foregoing reasons, we reverse the WCJ’s December 5, 2024

judgment in part; vacate the January 13, 2025 judgment; and remand this matter to

the WCJ with instructions. We deny the requests found in Valluzzo’s Answer.

REVERSED IN PART; VACATED IN PART; REMANDED WITH
INSTRUCTIONS; ANSWER TO APPEAL DENIED

47