Brandon Allen v. The Otwell Company, LLC

Judgment rendered April 9, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,116-WCA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

BRANDON ALLEN Plaintiff-Appellant

versus

THE OTWELL COMPANY, LLC Defendant-Appellee

*****

Appealed from the
Office of Workers’ Compensation, District 1 East

Parish of Ouachita, Louisiana
Trial Court No. 22-02089

Brenza Irving Jones
Workers’ Compensation Judge

*****

MANNING LAW FIRM Counsel for Appellant
By: Brennan R. Manning
Bobby R. Manning

ANZELMO LAW FIRM Counsel for Appellee
By: Donald J. Anzelmo

*****

Before PITMAN, THOMPSON, and MARCOTTE, JJ.

MARCOTTE, J.

This workers’ compensation appeal arises from the Office of

Workers’ Compensation, District One East, Parish of Ouachita, Judge

Brenza Irving Jones presiding. Plaintiff-Appellant seeks review of the trial

court’s judgments granting defendant-appellee’s peremptory exception of

prescription and dismissing his suit with prejudice and denying plaintiff’s

motion for a new trial. Appellee answered the appeal seeking damages,

costs, and attorney fees. For the following reasons, we amend the

judgments, and, as amended, affirm.

FACTS AND PROCEDURAL HISTORY

This case involves plaintiff’s multiple hernias, which occurred as

follows:

1) A left inguinal hernia (the “left hernia”), which the
employee-plaintiff claimed he sustained on March 17, 2021,
and was repaired on April 7, 2021.

2) A right inguinal hernia (the “right hernia”), which was
discovered in July 2021 and repaired in October 2021.

3) A bilateral inguinal hernia (the “bilateral hernia”), which was
discovered in November 2023 and repaired in December 2023.

On April 14, 2022, plaintiff Brandon Allen (“Allen”) filed a 1008

Disputed Claim for Compensation (“1008”) with the Louisiana Office of

Workers’ Compensation. His 1008 stated that on April 14, 2021, he was

working for defendant, The Otwell Company, LLC (“Otwell”), in

Sterlington, Louisiana, when he moved a slab of granite and felt a “lower

stomach tear.” He sought treatment at Glenwood Medical Center

(“Glenwood”) and Ochsner LSU Hospital. He stated that Otwell refused to

pay wage or medical benefits or produce its workers’ compensation

insurance carrier. He sought penalties and attorney fees. Otwell filed an

answer, denied all of Allen’s claims, and said that Allen sustained his injury

while working for another employer and was filing a fraudulent claim

against it.

On December 13, 2023, Otwell filed a peremptory exception of

prescription stating that Allen’s alleged injury occurred on March 17, 2021,

and not on April 14, 2021, as he claimed in his 1008. Otwell attached

Allen’s medical records to its exception. A provider note dated March 31,

2021, stated (verbatim):

44 yr old male presents to the ER with a left inguinal hernia
since 3/17. Patient reports he was picking up a large piece of
granite and felt intense pain. Patient went to Glenwood and had
a CT and [ultrasound] and was negative but was found to have
a reducible left inguinal hernia. … Patient reports he was
referred to our surgery clinic for April 12, but he is in intense
pain.

A second provider note, dated April 7, 2021, stated that on that date

Allen had a left inguinal hernia repaired. The exception was set for a

hearing on March 4, 2024.

On March 1, 2024, Allen filed an opposition to Otwell’s exception

stating that he was injured on March 17, 2021, while moving a large slab at

his workplace. He claimed he informed his employer of his injury. He was

diagnosed with a left inguinal hernia, which was surgically repaired on April

7, 2021. Allen claimed that on July 31, 2021, he sought urgent medical care

and was diagnosed with a right inguinal hernia. He had a surgery to correct

it on October 7, 2021, at The Surgery Clinic of Northeast Louisiana (“The

Surgery Clinic”). Allen then filed suit on April 14, 2022. Allen claimed that

he had a recurring workplace injury and each occurrence of his hernia and

subsequent treatment reset the commencement of the prescriptive period.

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On March 4, 2024, a hearing was held on the exception. Allen’s

counsel, Brennan Manning (“Atty. Manning”), admitted that Allen’s 1008

incorrectly stated his date of injury and that the correct date was March 17,

2021. Atty. Manning argued that Allen’s injury was a developing injury,

and his right hernia was related to his left hernia, but the court noted that his

medical records did not state that. Atty. Manning pointed to a portion of

Allen’s medical records from The Surgery Clinic in which he reported to a

provider (in November 2023) that he continued to have burning and swelling

in his groin area, and a CT showed that he had hernias on the right and left

despite previous repairs.

It appears from the record that Allen sought treatment with multiple

providers and was unsuccessful in acquiring all his related medical records

prior to the hearing on the exception. Atty. Manning said he was able to

access some of Allen’s records through MyChart, but he had difficulty

obtaining the records directly from providers. He asked for a continuance to

acquire proof to show that Allen reported a second injury to Otwell. The

trial court did not grant a continuance.

Otwell pointed out that a provider note stated that Allen had a CT

scan prior to the repair of his left hernia, which only showed a hernia on that

side but did not mention a hernia on his right side. Otwell also argued that

Allen’s medical records did not indicate how his right hernia was sustained

or that it was the result of a March 2021 accident. Otwell added that if Allen

sustained a new injury, he was unable to show that he was working at Otwell

when a workplace accident occurred which resulted in his right hernia.

Otwell’s counsel, Donald Anzelmo (“Atty. Anzelmo”), also noted that La.

R.S. 23:1221 said that the recurrence of a hernia following surgery shall be
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considered a separate hernia that had to result from a workplace injury that

was promptly reported to the employer.

The trial court found that Allen’s claims had prescribed, and it said

that no medical records were presented to show that Allen sustained a left

and right hernia from moving a slab of granite while employed with Otwell.

There was no report of an injury resulting in a right hernia, and nothing

presented to the court showed that Allen sought medical attention within the

30-day period for complaints. The trial court said that it was clear from the

evidence that his right hernia did not occur when he suffered his work-

related injury. The trial court said that the accident occurred on March 17,

2021, and the 1008 was not filed until April 14, 2022. The trial court signed

a judgment in open court granting defendant’s exception of prescription and

dismissing plaintiff’s claims with prejudice at his cost.

On March 13, 2024, Allen filed a motion for a new trial arguing that

he discovered new evidence which he could not have obtained before or

during the hearing on the exception. Allen stated that he acquired his

medical records related to a bilateral inguinal hernia, which showed that he

had a third surgery that was related to the injury that occurred during his

employment with Otwell.

Otwell opposed the motion for a new trial stating that Allen did not

provide the court with a basis upon which to conclude that his newly

discovered evidence could not have been obtained before or during trial with

the due diligence required by La. C.C.P. art. 1972. Otwell said that Allen

produced medical records at the hearing on the exception which detailed his

treatment for his left hernia repair, which occurred on April 7, 2021; his

right hernia repair, which occurred on October 7, 2021; and his bilateral
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hernia repair, which occurred on December 27, 2023. Otwell argued that

Allen was misrepresenting to the trial court that the records noting his

bilateral repair were newly discovered evidence.

Otwell again argued that La. R.S. 23:1221 provided that the

recurrence of a hernia following surgery shall be considered a separate

hernia. Otwell stated that Allen did not produce evidence that his separate

hernia was the result of an injury which occurred in the course and scope of

his employment with Otwell, that he reported the new accident to his

employer, and that he was attended by a licensed physician within 30 days.

At a hearing on the motion for a new trial, Atty. Manning said that he

did not have medical records about the recurrence of his client’s hernias due

to his client being unclear about where he had his three hernia procedures

performed, which included Glenwood, P&S Surgery Center (“P&S”), and

The Surgery Clinic. Atty. Manning also said that Allen did not provide him

with all the text messages between him and Otwell in which he reported the

recurrence of his hernia. Atty. Anzelmo pointed out that Allen provided the

court with medical records from The Surgery Clinic at the hearing on the

exception. Atty. Anzelmo argued that Allen still was unable to prove what

was required to show that his claim had not prescribed.

The trial court agreed that Allen failed to present the evidence

required to substantiate his claims under La. R.S. 23:1221. It said that Allen

produced evidence that he requested records from P&S, but not Glenwood

or The Surgery Clinic. The court pointed out that Allen had a year and a

half to get the necessary records but failed to do so. The court agreed with

Atty. Anzelmo’s argument that during the hearing on the exception, Atty.

Manning presented medical records from The Surgery Clinic but later
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argued that he had trouble getting records from that clinic. The trial court

said that it could only conclude that Allen knew where the records were but

did not acquire them prior to the hearing on the exception. The trial court

denied the motion for a new trial. On April 22, 2024, the trial court signed a

judgment to that effect. Allen now appeals.

DISCUSSION

Allen assigns errors arguing that the trial court erred in granting

Otwell’s exception of prescription and denying his motion for a new trial.

Allen argues that, while his claim may have prescribed for his left hernia, a

new prescriptive period applied to his claim for the recurrence of his left

hernia in November 2023. Allen contends that Page v. Abigails, 01-551 (La.

App. 3 Cir. 10/31/01), 799 So. 2d 785, writ denied, 01-3165 (La. 1/25/02),

807 So. 2d 847, states that La. R.S. 23:1221(4)(r)(i) should be used to prove

entitlement to a claim for compensation for a work-related hernia and not

used to establish that a claim prescribed. He argues that the La. R.S.

23:1221 language regarding the recurrence of a hernia as a separately

compensable hernia was added to the law to ensure that an employee’s

recurrent disability was covered as a later manifestation of the original

injury.

Allen also asserts that his right hernia should be treated as a

developmental injury that extended the prescriptive period for his claims.

He claims that his right hernia was not present when he was diagnosed and

treated for his left hernia. Allen says that he was not working in July 2021

when he was diagnosed with his right hernia, and because his right hernia

did not manifest immediately after his accident at Otwell, it was a

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developmental injury. Allen asks this court to reverse the rulings of the trial

court.

Otwell points out that Allen admitted that he used the incorrect date

on his 1008. Otwell states that the evidence Allen submitted at the hearing

on the exception showed that his accident occurred on March 17, 2021, more

than one year before he submitted his 1008 on April 14, 2022. Otwell also

contends that Allen’s 1008 only referenced his left hernia, so any alleged

recurrence was not before the trial court and is not before this court. Otwell

states that in his motion for a new trial, Allen claimed there was newly

discovered evidence that the right hernia was a developmental injury, but he

failed to introduce evidence at the hearing supporting his argument. Otwell

further emphasizes that when Allen filed his 1008 in April 2022, his bilateral

hernia, which was diagnosed in November 2023, had not yet occurred. At

oral argument, Atty. Anzelmo said that Allen filed a second 1008 Disputed

Claim for Compensation for his bilateral hernia.1

Otwell states that Allen attempted to raise a new cause of action at the

hearing on the motion for a new trial, and he should not be allowed to amend

his petition to state a different cause of action with a longer prescriptive

period. Otwell reiterates that La. R.S. 23:1221 provides that the recurrence

of a hernia following surgery shall be considered a separate hernia for

purposes of prescription, which requires that Allen file a separate claim

against it. The only claim Allen raised was for his left hernia. Otwell argues

that La. R.S. 23:1209 does not apply to hernias, so Allen’s right hernia

cannot be a developmental injury, and Allen provided no evidence to show

1
The second 1008 does not appear in the record.
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that his right hernia was related to his left hernia. Otwell asks that this court

affirm the trial court’s judgments.

Prescription

First, the parties informed this court at oral argument that Allen has

filed a second 1008 with the Louisiana Office of Workers’ Compensation for

his bilateral hernia. Therefore, that claim is not before this court.

Legal findings regarding a peremptory exception of prescription are

subject to a de novo standard of review. Succession of Tripp, 55,496 (La.

App. 2 Cir. 5/29/24), 387 So. 3d 939. To the extent that any factual

determinations are made based upon presented evidence on the exception,

those would be reviewed under the manifest error standard. Id. A new trial

shall be granted, upon contradictory motion of any party, when the party has

discovered, since the trial, evidence important to the cause, which he could

not, with due diligence, have obtained before or during the trial. La. C.C.P.

art. 1972(2). A new trial may be granted if there is good ground therefor.

La. C.C.P. art. 1973. The standard of review of a ruling on a motion for a

new trial is abuse of discretion. Criswell v. Kelley, 54,188 (La. App. 2 Cir.

3/9/22), 335 So. 3d 483.

The prescriptive periods applicable to the filing of workers’

compensation claims are found in La. R.S. 23:1209. This section provides

that claims are barred unless filed: (1) within one year from the date of the

accident; (2) one year from the last compensation payment for total

disability or three years from the last payment for partial disability; or (3)

one year from the time the injury develops, if not immediately manifest, but

no more than two years after the accident. La. R.S. 23:1209(A)(1)-(3).

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Allen alleges: (1) he was injured on March 17, 2021; (2) he was

diagnosed with his left hernia, which was repaired on April 7, 2021; (3) in

July 2021, he was diagnosed with his right hernia, which was repaired in

October 2021; and (4) he filed his 1008 on April 14, 2022. His corrected

1008 indicates that Allen’s claims for his left and right hernias prescribed

because they were filed more than one year after his accident. However,

Allen argues that his action for his right hernia had not prescribed when he

filed his 1008 because it was a recurrence following the surgical repair to his

left hernia or, in the alternative, his right hernia was a developmental injury.

If there is a recurrence, it causes the commencement of a new

prescriptive period pursuant to La. R.S. 23:1221(4)(r)(iv). That provision

states, “Recurrence of the hernia following surgery shall be considered as a

separate hernia, and the provisions and limitations of this Subparagraph shall

apply.” One of the only two cases Allen cites, Owens v. Liberty Mut. Ins.

Co., 307 So. 2d 313 (La. 1975), is the leading case on the prescriptive period

associated with the recurrence of a hernia; the supreme court also addressed

whether a hernia may be considered a developmental injury.

In Owens v. Liberty Mut. Ins. Co., supra, the plaintiff-employee,

Owens, suffered a work-related injury in 1968 resulting in a hernia. Id. He

had three recurrences of his hernia; following his third hernia, he filed suit

for workers’ compensation benefits within one year of the recurrence, but

more than one year after the payment of compensation benefits and more

than two years after the initial 1968 injury. Id. The trial court dismissed his

claim as prescribed. Id. The court of appeal affirmed the dismissal finding

that the suit was timely, but that Owens’ petition did not state a cause of

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action because his third recurrence did not happen while he was working for

his initial employer. Id.

The Louisiana Supreme Court stated that the court of appeal properly

disregarded as inapplicable the two-year prescriptive period for

developmental injuries. Id. The court said that the 1968 revisions to La.

R.S. 23:1221 “set forth an internally complete regulation” which regarded

each recurrence of a hernia as a separately compensable hernia, if it resulted

from an initial work-related injury. Id. at 315. Thus, a recurrent hernia is

not a developmental injury subject to the two-year prescriptive period found

in La. R.S. 23:1209.

The supreme court said that a recurrent hernia could be compensable

by the first employer as a separate hernia under the 1968 revisions to

workers’ compensation law, if the recurrence was causally related to the

initial work-related hernia. Owens v. Liberty Mut. Ins. Co., supra. The

supreme court held that the recurrence or aggravation of a hernia initially

sustained at work is regarded as compensable and as resulting from injury by

accident during the course and scope of the employment, even if the

recurrence happened while the employee was working for a different

employer. Id.

In the second case Allen cites, Page v. Abigails, supra, the plaintiff,

Page, was employed by Abigails, and he alleged an injury while at work in

December 1998. He sought medical treatment and was diagnosed with an

inguinal hernia. Id. He was treated for several months, and his hernia was

surgically repaired, but in November 1999, Page experienced problems with

the hernia site, including persistent drainage problems and infection. Id.

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Page filed suit more than one year after his December 1998 injury. Id.

After multiple medical visits with different providers, in January 2001, he

was diagnosed with a tissue suture reaction with chronic infection. Id. The

trial court ruled that his claims had prescribed. The Third Circuit reversed

and explained that the term “recurrence” means “to occur again after an

interval.” Id. at p. 5, 799 So. 2d at 788. The court then provided further

context for what a “recurrence” of a hernia means:

In Crawford v. Tampa Inter-Ocean S.S. Co., Inc., 150 So. 875
(La. Ct. App. 1933), the claimant claimed that a surgical
operation to cure his inguinal hernia did not cure his hernia
because he continued to suffer thereafter. The doctors testified
that although the surgical procedure was successful in all
aspects, the hernia recurred within a short while thereafter. The
court went on to explain that:

A “recurring hernia” at the same spot, as the word
“recurring” signifies, is a return of a former hernia,
which, though temporarily arrested by the operation, was
one of the small minority of cases in which a successful
result did not follow a skillful operation. Id. at 876.

Page v. Abigails, supra at p. 5, 799 So. 2d at 788.

The court of appeal found that Page suffered a recurrence of his hernia

in November 1999 and in January 2001. The court stated:

Prior to both of these times, Page had been released by the
doctors with a stable hernia repair. However, he began to suffer
problems with his hernia repair at these times. As recognized
by the supreme court in Owens [v. Liberty Mutual Ins. Co.,
supra], the purpose of the 1968 hernia provisions was to require
an employee disabled by a hernia which results from a work-
injury to submit to surgery, which has a great potential for
success. However, there is a minor chance that the hernia will
recur, so the 1968 law added to its self-contained regulation the
language regarding a recurrence of hernia as a separately
compensable hernia to [ensure] that the employee’s recurrent
disability was covered as a later-manifestation of the original
injury. This is because the initial accident at work is regarded
as the factual and legal cause of the subsequent recurrence and
the disability consequent to it. Id. Naturally, a “recurrence” is
not a new injury, but simply another period of incapacitation
resulting from a previous injury for which the employer
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remains liable. Page had recuperated both after his initial
surgery and after the suture was removed. However, he began
to experience problems that were all associated with the hernia
repair. He suffered another period of incapacitation resulting
from the original hernia. Page has suffered recurrences of his
hernia problem, which are associated with his initial alleged
injury at work.

Page v. Abigails, supra at p. 7, 799 So. 2d at 789.

The facts of Allen’s case can also be compared to those found in

Lester v. Rebel Crane & Serv. Co., 393 So. 2d 674 (La. 1981), where the

plaintiff, Lester, was injured in the course of his employment when a burglar

shot him three times. Lester suffered injuries to multiple organs and

required two surgeries. Id. Lester was released to return to work, but he

developed an incisional hernia at the operative site one month later, which

was repaired. Id. He returned to work six weeks later, but a second hernia

occurred at the same site and was surgically repaired. Id. A third hernia was

apparent within one year of the prior surgery and was surgically repaired,

then a fourth hernia appeared and was also surgically repaired. Id. Lester

received some workers’ compensation benefits, but his claims were later

denied as prescribed by his employer’s insurance carrier. Id.

Lester filed suit, which was dismissed following an exception of

prescription. Id. The trial court said that any claim for the original accident

had prescribed under the two-year period of La. R.S. 23:1209 and,

alternatively, that the suit had prescribed because one year had elapsed after

the last payment of compensation benefits to Lester. Id. The court of appeal

affirmed. Id.

The Louisiana Supreme Court reversed and found that La. R.S.

23:1209 was inapplicable to Lester’s claim. Id. The court said that Lester’s

injury was immediately apparent and he had a succession of complications,
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which were undeniably accident-related. Id. Each complication manifested

within one year of the preceding one. Id.

Allen claims he was injured while working for Otwell on March 17,

2021. Allen did not file a claim until April 14, 2022, more than one year

after he was injured. Therefore, on the face of the pleadings, his claims have

prescribed. Allen must prove that there is an exception which entitles him to

a longer prescriptive period or interrupts prescription and starts the running

of a new prescriptive period. The supreme court in Owens v. Liberty Mut.

Ins. Co., supra, and Lester v. Rebel Crane & Serv. Co., supra, stated that the

two-year prescriptive period for developing injuries does not apply to

hernias. Therefore, Allen cannot claim a developing injury and avail himself

of the longer prescriptive period found in La. R.S. 23:1209(A)(3). Neither

has Allen been paid any benefits, which would have interrupted prescription.

See La. R.S. 23:1209(A)(2).

Allen’s claim for his left hernia has prescribed. The only question

that remains is whether Allen can prove he is permitted to use the exception

regarding hernia recurrence, which would begin the running of a new

prescriptive period for his right hernia, making his claim timely.

The facts that Page v Abigails, supra, and Lester v. Rebel Crane &

Serv. Co., supra, have in common is that the recurrence of the plaintiffs’

hernias stemmed from their initial hernias. In Page v Abigails, supra, Page

had complications related to his hernia’s surgical site including a reaction to

his sutures with infection, which later had to be surgically repaired. In

Lester v. Rebel Crane & Serv. Co., supra, Lester’s recurrences of his

incisional hernia were related to the first two surgeries he had after he was

shot.
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Allen cannot say the same about his right hernia. Allen’s medical

records show that he was diagnosed with a left inguinal hernia prior to

March 31, 2021. He had an ultrasound and CT performed to establish his

diagnosis. His medical records prior to the July 2021 diagnosis of his right

hernia make no mention of his right side. His right hernia was a separate

injury with a distinct surgical repair and was unrelated to his left hernia and

its surgical repair. We note that Allen also mentions that he later had

bilateral hernia surgery to repair hernias on his left and right sides. That

further drives home the point that his left hernia and his right hernia were

separate from each other, and he is unable to show that the injury he claimed

resulted in his left hernia was the factual and legal cause of his right hernia.

Finding that Allen’s right hernia was not a recurrence of his left

hernia, we can only conclude that he either: (1) sustained his right hernia at

the same time as his left (though his medical records do not reflect this), in

which case his injury date was March 17, 2021, and his claim prescribed

prior to the filing of his 1008; or (2) he sustained his right hernia after his

left. Allen is not claiming that he injured himself a second time while

working for Otwell which resulted in his right hernia. In his brief to this

court, he said he was not working in July 2021 when he was diagnosed with

his right hernia. Allen did not present evidence in response to Otwell’s

exception of prescription or in his motion for a new trial to prove that his

right hernia was a recurrence of his left hernia. We find that his assignments

of error have no merit and the trial court’s rulings are affirmed.

Answer to Appeal

Otwell filed an answer requesting damages, costs, and attorney fees,

claiming Allen’s appeal is frivolous because it has no reasonable basis in
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fact or law. Otwell argues that Allen knowingly filed his 1008 with the

incorrect date to evade prescription and failed to submit evidence supporting

his argument of a developmental injury at the hearing on the exception.

Otwell contends that Allen then filed for a new trial based on newly

discovered evidence but offered no explanation for why he was unable to

obtain the evidence by due diligence for use at the hearing on the exception.

Otwell claims that at the hearing on the new trial, Allen referred to

medical records that he never produced, and he did not introduce any

evidence into the record at the hearing. Otwell claims it is entitled to relief

under La. C.C.P. art. 2164. Otwell asks that this court affirm the trial court’s

judgment and award it damages, trial and appellate costs, and attorney fees.

Allen did not respond to Otwell’s answer to the appeal.

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. La. C.C.P. art.

2164. This provision is penal in nature and is to be strictly construed.

Fuller v. Pittard, 55,336 (La. App. 2 Cir. 11/15/23), 374 So. 3d 345, writ

denied, 23-01666 (La. 2/27/24), 379 So. 3d 663.

Damages for a frivolous appeal are allowed only when it is obvious

that the appeal was taken solely for delay, that the appeal fails to raise a

serious legal question, or that counsel is not sincere in the view of the law he

advocates, even though the court is of the opinion that such a view is not

meritorious. Id. The award of damages and attorney fees for a frivolous

appeal are utilized to curtail the filing of appeals that are intended to delay
15

litigation, harass another party, or those that have no reasonable basis in fact

or law. Id. Appeals are always favored and, unless the appeal is

unquestionably frivolous, damages will not be allowed. Id.

Allen did not seek benefits until after his claim prescribed. He then

filed his 1008, on April 14, 2022, using the incorrect date of injury (April

14, 2021), which prevented his claim from prescribing by one day. It was

only after Otwell filed an exception of prescription that plaintiff

acknowledged that his accident occurred on March 17, 2021. The hearing

on the exception occurred on March 4, 2024, nearly two years after plaintiff

filed his 1008. Allen was aware that his medical records were necessary to

prove his claims. However, he failed to produce those records at the

hearings on Otwell’s exception of prescription and on his motion for a new

trial. Plaintiff did not provide any newly discovered evidence at the hearing

on his motion for a new trial, even though that was the basis for his request

for a new trial. At the same hearing, plaintiff claimed his right hernia was a

developing injury despite jurisprudence stating that workers’ compensation

law about developmental injuries is inapplicable to hernias.

Allen then filed an appeal when there was clearly no legal justification

for doing so. Allen’s appeal is unquestionably frivolous, and Otwell is

entitled to relief. Finding defendant’s request for trial and appellate costs

appropriate, we order Brandon Allen to pay the trial court and appellate

costs. We further award defendant appellate attorney fees in the amount of

$1,000. We decline to award Otwell damages.

CONCLUSION

For the foregoing reasons, the trial court’s rulings are affirmed. The

judgments are amended to cast Brandon Allen with all trial and appellate
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costs. In addition, The Otwell Company, LLC is awarded $1,000 in attorney

fees for this appeal. Other relief sought by The Otwell Company, LLC is

denied.

AMENDED AND, AS AMENDED, AFFIRMED.

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