Dena Romero v. Garan's, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-482

DENA ROMERO

VERSUS

GARAN’S, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION – DISTRICT 4
PARISH OF LAFAYETTE, NO. 02-02417
ADAM C. JOHNSON, WORKERS’ COMPENSATION JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John
D. Saunders, Jimmie C. Peters, Marc T. Amy, Elizabeth A. Pickett, Billy H. Ezell,
J. David Painter, James T. Genovese, Shannon J. Gremillion, Phyllis M. Keaty,
and John E. Conery, Judges.

AFFIRMED IN PART; REVERSED IN PART;
RENDERED IN PART; AND DISMISSED IN PART.

Amy, J., dissents in part and assigns written reasons.

Pickett, J., dissents in part for the reasons assigned by Judge Keaty. In all other
respects, she concurs with the opinion.

Gremillion, J., concurs in part and dissents in part for the reasons assigned by
Judge Amy.

Keaty, J., dissents in part and assigns written reasons.

Conery, J., concurs in part and dissents in part and assigns written reasons.

Michael B. Miller
P. O. Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF/APPELLANT:
Dena Romero

H. Douglas Hunter
Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P.
P. O. Drawer 1329
Opelousas, LA 70571-1329
(337) 948-8201
COUNSEL FOR DEFENDANTS/APPELLEES:
Garan’s, Inc.
Liberty Mutual Insurance Company

PETERS, J.

The plaintiff, Dena Romero, appeals from the judgment of the workers’

compensation judge (WCJ) awarding her penalties and attorney fees for her

employer’s failure to timely reimburse her mileage expenses, but denying her

penalties and attorney fees for its failure to authorize medical treatment. For the

following reasons, we reverse in part, render in part, affirm in part, and dismiss in

part.

DISCUSSION OF THE RECORD

Ms. Romero sustained a work-related injury on June 3, 2000, while

employed by Garan’s, Inc., at its Kaplan, Louisiana business location. On May 2,

2005, the WCJ awarded her temporary total disability (TTD) benefits; all

reasonable and necessary medical treatment, including back surgery; and various

penalties and attorney fees. On appeal, this court affirmed the judgment in part,

reversed it in part, and awarded additional attorney fees for work performed on

appeal. Romero v. Garan’s, Inc., 05-1297 (La.App. 3 Cir. 4/19/06), 929 So.2d 258.

The matter now before us arises from a February 16, 2012 motion filed by

Ms. Romero wherein she sought awards of penalties and attorney fees based on the

actions of Garan’s, Inc. and its workers’ compensation insurer, Liberty Mutual

Insurance Company (collectively referred to as Garan), in terminating her TTD

benefits on January 10, 2012, and in failing to timely reimburse her mileage

requests submitted on September 15, 2011; September 29, 2011; October 6, 2011;

and October 17, 2011.

In response to Ms. Romero’s motion, Garan filed an exception asserting that

the mileage reimbursement portion of the motion constituted the improper use of

summary proceedings. Following an April 23, 2010 hearing on both the motion

and exception, the WCJ rendered judgment in favor of Ms. Romero, awarding her

$3,000.00 in penalties and $3,000.00 in attorney fees based on Garan’s untimely

payment of indemnity benefits, rather than termination of benefits. However, with

regard to the mileage reimbursement claim, the WCJ granted Garan’s exception

and converted this claim to an ordinary proceeding. The WCJ did not reduce its

rulings arising from this hearing to writing until July 12, 2012.

On July 2, 2012, and before the mileage reimbursement issue came to trial,

Ms. Romero amended her pleadings to request additional penalties and attorney

fees based on Garan’s denial of the medical treatment recommended by her doctor.

A trial on the merits of the remaining issues occurred on August 27, 2012, after

which the WCJ took the issues under advisement. On October 22, 2012, the WCJ

rendered oral reasons for judgment finding that Garan was untimely in paying Ms.

Romero’s mileage request and awarding her $2,000.00 in penalties and $3,500.00

in attorney fees. However, the WCJ denied her claim for penalties and attorney

fees based on Garan’s refusal to approve the medical treatment. The WCJ

executed a written judgment conforming to its oral reasons for judgment on

November 16, 2012.

Ms. Romero appeals from this judgment, raising four assignments of error:

1. The workers’ compensation judge erred in bifurcating the
medical and indemnity issues in the Motion for Penalties and
Attorney’s Fees.

2. The workers’ compensation judge erred in allowing LSA R.S.
23:1203.1 as a defense in a pending claim for the nonpayment
of reasonable and necessary medical treatment.

3. It was error for the workers’ compensation judge to limit the
penalty award for discontinuance of benefits to $3,000.00.

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4. The workers’ compensation judge erred in failing to award a
$3,000.00 penalty for each failure to pay mileage and $3,000.00
for the denial of medical treatment recommended by Dr. Jindia.

OPINION

All of Ms. Romero’s assignments of error raise questions of law. Therefore,

we will review each issue in order to determine whether the WCJ was legally

correct in his ruling. Orr v. Acad. La. Co., L.L.C., 12-1411 (La.App. 3 Cir. 5/1/13),

__ So.3d __.

Bifurcation of Medical and Indemnity Issues

In her first assignment of error, Ms. Romero argues that the WCJ erred in

granting the exception of improper use of a summary proceeding and ordering the

bifurcation of the mileage issue from the indemnity issue. As a result of the grant

of the exception, the indemnity issue was decided on April 23, 2012, while the

mileage issue was heard on August 27, 2012. Based on the WCJ’s November 16,

2012 judgment, Ms. Romero was awarded penalties and attorney fees based on

Garan’s untimely mileage reimbursement.

It is well settled that courts will not decide abstract,
hypothetical, or moot controversies, or render advisory opinions with
respect to such controversies. Louisiana State Board of Nursing v.
Gautreaux, 2009-1758 (La.App. 1st Cir.6/11/10), 39 So.3d 806, 811,
writ denied, 2010-1957 (La.11/5/10), 50 So.3d 806. An issue is moot
when a judgment or decree on that issue has been “deprived of
practical significance” or “made abstract or purely academic.” Id.
Thus, a case is moot when a rendered judgment or decree can serve no
useful purpose and give no practical relief or effect. Id. If the case is
moot, there is no subject matter on which the judgment of the court
can operate. Id.

Animal Legal Def. Fund v. State, Dep’t of Wildlife & Fisheries, 12-971, pp. 15-16
(La.App. 1 Cir. 4/25/13), __ So.3d __, __ (footnote omitted), writ denied, 13-1565
(La. 10/4/13), 122 So.3d 1025.

In this instance, we find that the issue raised by Ms. Romero has been

rendered “abstract or purely academic” by the WCJ’s November 16, 2012

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judgment awarding her penalties and attorney fees based on Garan’s failure to

timely reimburse her for mileage. “The proper procedural vehicle to contest an

interlocutory judgment that does not cause irreparable harm is an application for

supervisory writs.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960

So.2d 931, 933. In this instance, the grant of Garan’s exception was neither

determinative of the merits nor resulted in irreparable harm to Ms. Romero. Thus,

Ms. Romero should have sought a supervisory writ from this court to review the

WCJ’s decision. Doing so would have avoided the very delay and increased work

of which she now complains. Accordingly, we find no merit in this assignment.

Louisiana Revised Statutes 23:1203.1

In her next assignment of error, Ms. Romero argues that the WCJ erred in

relying on La.R.S. 23:1203.1 in denying her request for penalties and attorney fees

based on Garan’s November 30, 2011 refusal to authorize the medical treatment

recommended by Dr. Sanjiv K. Jindia, a Lafayette, Louisiana pain management

doctor. She argues that La.R.S. 23:1203.1, which was enacted pursuant to 2009 La.

Acts No. 254, § 1, does not apply in this instance because her work-related

accident occurred eight years prior to its enactment, and its provisions should not

be applied retroactively. She further argues, as part of her fourth assignment of

error, that the WCJ erred by refusing her penalties and attorney fees based on

Garan’s refusal to authorize the medical treatment.

Louisiana Revised Statutes 23:1203.1 requires the director of the office of

workers’ compensation administration to appoint a medical advisory council to

develop a medical treatment schedule for workers’ compensation cases. It then

requires that the medical treatment schedule so developed be promulgated by the

director and office of workers’ compensation administration no later than January

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1, 2011. La.R.S. 23:1203.1(B)(1). With regard to the particulars of its application,

the statute currently provides in pertinent part:

....

I. After the promulgation of the medical treatment schedule,
throughout this Chapter, and notwithstanding any provision of law to
the contrary, medical care, services, and treatment due, pursuant to
R.S. 23:1203, et seq., by the employer to the employee shall mean
care, services, and treatment in accordance with the medical
treatment schedule. Medical care, services, and treatment that varies
from the promulgated medical treatment schedule shall also be due by
the employer when it is demonstrated to the medical director of the
office by a preponderance of the scientific medical evidence, that a
variance from the medical treatment schedule is reasonably required
to cure or relieve the injured worker from the effects of the injury or
occupational disease given the circumstances.

J. After a medical provider has submitted to the payor the
request for authorization and the information required by the
Louisiana Administrative Code, Title 40, Chapter 27, the payor shall
notify the medical provider of their action on the request within five
business days of receipt of the request. If any dispute arises after
January 1, 2011, as to whether the recommended care, services, or
treatment is in accordance with the medical treatment schedule, or
whether a variance from the medical treatment schedule is reasonably
required as contemplated in Subsection I of this Section, any
aggrieved party shall file, within fifteen calendar days, an appeal with
the office of workers’ compensation administration medical director
on a form promulgated by the director. The medical director shall
render a decision as soon as is practicable, but in no event, not more
than thirty calendar days from the date of filing.

K. After the issuance of the decision by the medical director of
the office, any party who disagrees with the medical director’s
decision, may then appeal by filing a “Disputed Claim for
Compensation,” which is LWC Form 1008. The decision of the
medical director may be overturned when it is shown, by clear and
convincing evidence, the decision of the medical director was not in
accordance with the provisions of this Section.

(Emphasis added for later reference in opinion.)

The medical treatment schedule was promulgated in June of 2011. LAC 40:I, §

2013.

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On November 22, 2011, Dr. Jindia faxed a request form to Liberty Mutual

seeking preauthorization to perform a radiofrequency facet-nerve ablation on Ms.

Romero. Liberty Mutual’s utilization-review department telephoned Dr. Jindia’s

office on November 29, 2011, denying the request and, the next day, forwarded a

written denial. The written denial received by Dr. Jindia from the peer-review

practitioner, who made the denial decision, stated that “Louisiana guidelines do not

apply[,]” and that “[t]he request is not medically necessary.” In explaining this

conclusion, the peer-review practitioner stated:

The claimant does not have physical examination findings consistent
with facet originating pain and does not have diagnostic imaging
correlating with facet degenerative changes in the records provided.
A psychosocial screening has not been provided for review and the
claimant’s benefit from the previous ablation has not been specified.
Records do not reflect that lower levels of care, including physical
therapy, have been exhausted. Given the above clinical information
and guidelines criteria, the request is denied.

The written report further contained the following notice:

APPEAL RIGHTS: The physician or injured worker has the right to
request an appeal with the OWCA Medical Director by filing the
LWC-WC Form 1099, along with supporting medical records within
fifteen days of this notification. The LWC-WC Form 1009 and
instructions on how to complete the form are posted on the website,
www.LAWORKS.net.

Neither Ms. Romero nor Dr. Jindia sought an appeal with the OWCA medical

director.

Shelly Dunn, Liberty Mutual’s claims adjustor on Ms. Romero’s case,

received a copy of the November 29, 2011 denial letter sent to Dr. Jindia, but three

weeks and two days later, she decided to overrule the utilization review decision

and approve the procedure. She testified that on December 22, 2011, she

unsuccessfully attempted to call Dr. Jindia’s office to inform him that she would

approve the treatment. In her December 22, 2011 office note, she stated:

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Repeat RFA was denied by preauth – prior RFA done in June and did
help clt symptoms and appears reasonable for repeat 1 x a year per my
experience with prior SMO on RFA’s. If block helped then RFA is
indicated and repeat is indicated and repeat appropriate yearly if relief
lasts 6-12 mos. It has been 6 mos however does not appear rx usage
decreased and we dont have specific info on her benefit from the prior
ablation. I feel it is prudent to approve the repeat RFA until we can
get SMO to comment on the frequency of repeat RFA’s – this is
necessary to avoid 1008 until we can have issue properly addressed.

Called the dr. office to approve but they are closed now for the
holiday until Tuesday. I will call then and approve auth.

She testified that she telephoned Dr. Jindia’s office again on December 27, 2011,

but was unable to speak to anyone. Instead, she left a message stating that she was

overriding the preauthorization denial and requested that his office contact her.

When Dr. Jindia failed to contact her after she left the December 27, 2011

message, Ms. Dunn faxed his office a notice of approval for the procedure on

January 6, 2012. She suggested that her decision to override the peer-review

denial was basically a business decision. She explained that she wanted matters to

move forward, and she did not feel that the issue was worth litigating.

The WCJ did not reach the merits of Ms. Romero’s claim for penalties and

attorney fees for the failure to authorize the radiofrequency facet-nerve ablation

procedure recommended by Dr. Jindia. Instead, he rejected the claims because

neither Ms. Romero nor Dr. Jindia had timely appealed the rejection pursuant to

La.R.S. 23:1203.1(J). Thus, the initial inquiry is to determine whether La.R.S.

23:1203.1 applies retroactively.

Louisiana Civil Code Article 6 provides, “In the absence of contrary

legislative expression, substantive laws apply prospectively only. Procedural and

interpretative laws apply both prospectively and retroactively, unless there is a

legislative expression to the contrary.” Based on this language, courts have a two-

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fold inquiry. They must first determine whether the legislature expressly stated

that the law is to apply retroactively or prospectively. In the absence of such

expression, courts must classify the law as either substantive, procedural, or

interpretative. Davis v. St. Francisville Cntry. Manor, LLC, 05-72 (La.App. 1 Cir.

2/10/06), 928 So.2d 549, writs denied, 06-604 (La. 5/26/06), 930 So.2d 25, and 07-

481 (La. 4/27/07), 955 So.2d 699.

Procedural laws prescribe a method for enforcing a previously
existing substantive right and relate to the form of the proceeding or
the operation of the laws. Keith v. U.S. Fidelity & Guaranty Company,
[96-2075 (La. 5/9/97),] 694 So.2d [180,] 183. Substantive laws either
establish new rules, rights, and duties or change existing ones.
Interpretive laws, on the other hand, do not create new rules, but
merely establish the meaning that the interpretive statute had from the
time of its initial enactment. It is the original statute, not the
interpretive one, that establishes the rights and duties. St. Paul Fire &
Marine Insurance Company [v. Smith], 609 So.2d [809,] 817
[(La.1992)].

Rochelle v. LeBlanc, 10-1901, p. 5 (La.App. 1 Cir. 5/6/11), 65 So.3d 240, 243.

The legislature did not expressly state whether La.R.S. 23:1203.1 applies

prospectively only or both prospectively and retroactively. However, the language

appearing in italics in the previously quoted statute-language could lead one to

presume that the legislature intended the statute to apply both prospectively and

retroactively. Even assuming that the legislature, through this language, intended

the statute to apply retroactively, the court in Davis, 928 So.2d at 554-55, held that

“even where the legislature has expressed its intent to give a law a retroactive

effect, the law may not be applied retroactively if doing so would impair

contractual obligations or disturb vested rights in violation of the Contract and Due

Process Clauses of the Federal and State Constitutions.”

A panel of this court has previously addressed the retroactivity issue in Cook

v. Family Care Services, Inc., 13-108 (La.App. 3 Cir. 8/28/13), 121 So.3d 1274,

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and concluded that La.R.S. 23:1203.1 was procedural in nature and, therefore,

could be applied retroactively. However, another circuit has reached an opposite

result. In Church Mutual Insurance Co. v. Dardar, 12-659, 13-37 (La.App. 4 Cir.

6/26/13), 119 So.3d 967, the fourth circuit held that La.R.S. 23:1203.1 was

substantive in nature; therefore, it would only apply prospectively. In reaching this

conclusion, the fourth circuit held that the law, “which contains guidelines that did

not exist when [plaintiff] was injured, creates and places rules, rights, and duties

upon a claimant seeking reimbursement for recommended treatment.” Id. at 975.

We agree that La.R.S. 23:1203.1 should have prospective application only,

and, in reaching that decision, we specifically overrule our prior decision in Cook,

121 So.3d 1274. Although the law appears to be procedural in nature, it has a

substantive effect in that it requires an employee to first seek an appeal from the

medical director of the office of workers’ compensation, and, only then, if not

satisfied with that ruling, can the employee file a disputed claim and seek review

before the WCJ, albeit with a more stringent burden of proof. Thus, although the

legislature’s intent in enacting La.R.S. 23:1203.1 was to ensure the delivery of

medical care and treatment in a timely and efficient manner, an injured employee

is required to cross an additional hurdle in order to receive the care recommended

by his or her physician. Accordingly, we find that La.R.S. 23:1203.1 has a

substantive effect and that it should only apply prospectively. Thus, we find that

the WCJ erred in relying on La.R.S. 23:1203.1 in finding that Ms. Romero was not

entitled to penalties and attorney fees based on Garan’s initial refusal of the

radiofrequency facet-nerve ablation recommended by Dr. Jindia.

Having reached the conclusion that the WCJ legally erred in applying

La.R.S. 23:1203.1, we will now perform a de novo review of the record to

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determine whether Ms. Romero is entitled to penalties and attorney fees for

Garan’s refusal to authorize the medical treatment pursuant to the law in effect at

the time of her work-related injury.

The failure to authorize necessary medical treatment is considered a failure

to furnish medical benefits, as required by La.R.S. 23:1203, and will subject the

employer to penalties and attorney fees pursuant to La.R.S. 23:1201(F). Brown v.

Lafayette Ass’n. of Retarded Citizens, Inc., 11-1595 (La.App. 3 Cir. 6/20/12), 94

So.3d 950. At the time of Ms. Romero’s injury, La.R.S. 23:1201(F) provided as

follows:

Failure to provide payment in accordance with this Section
shall result in the assessment of a penalty in an amount equal to
twelve percent of any unpaid compensation or medical benefits or
fifty dollars per calendar day, whichever is greater, for each day in
which any and all compensation or medical benefits remain unpaid,
together with reasonable attorney fees for each disputed claim;
however, the fifty dollars per calendar day penalty shall not exceed a
maximum of two thousand dollars in the aggregate for any claim.
Penalties shall be assessed in the following manner:

(1) Such penalty and attorney fees shall be assessed against
either the employer or the insurer, depending upon fault. No workers’
compensation insurance policy shall provide that these sums shall be
paid by the insurer if the workers’ compensation judge determines that
the penalty and attorney fees are to be paid by the employer rather
than the insurer.

(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.

(3) Except as provided in Paragraph (4) of this Subsection, any
additional compensation paid by the employer or insurer pursuant to
this Section shall be paid directly to the employee.

(4) In the event that the health care provider prevails on a claim
for payment of his fee, penalties as provided in this Section and
reasonable attorney fees based upon actual hours worked may be
awarded and paid directly to the health care provider. This Subsection
shall not be construed to provide for recovery of more than one
penalty or attorney fee.

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(5) No amount paid as a penalty or attorney fee under this
Subsection shall be included in any formula utilized to establish
premium rates for workers’ compensation insurance.

In Magbee v. Federal Express, 12-77, p. 13 (La.App. 3 Cir. 12/12/12), 105

So.3d 1048, 1057 (quoting LeMelle v. Wal-Mart Stores, Inc., 04-527, pp. 10-11

(La.App. 3 Cir. 9/29/04), 883 So.2d 526, 552-53), we stated the law pertaining to

the award of penalties based on an employer’s refusal to authorize recommended

medical treatment based on utilization review:

As stated in Harrington v. Coastal Construction & Engineering, 96-
681, p. 3 (La.App. 3 Cir. 12/11/96), 685 So.2d 457, 459, writ denied,
97-0109 (La.3/7/97), 689 So.2d 1375, “the employer must rely on
competent medical advice when the decision to deny the medical
treatment is made.” The mere production of a different opinion of a
doctor who never examined the claimant does not constitute
competent medical advice sufficient to reasonably controvert the
claim. Id.; see also Phillips v. Diocese of Lafayette, 03-1241 (La.App.
3 Cir. 3/24/04), 869 So.2d 313. While a utilization review process has
its place in the workers’ compensation process, this court has
consistently held that a long-distance diagnosis by a physician advisor
is not an acceptable basis for denial of treatment and benefits. See id.

Based on the evidence, Garan refused the radiofrequency facet-nerve

ablation based on the utilization-review physician’s recommendation. Outside of

this recommendation, Ms. Dunn’s office notes reveal that she had insufficient

information regarding the frequency that the recommended treatment should occur

and that she planned to schedule a second medical opinion to address this issue.

However, until that occurred, she was approving the treatment.

Garan and Liberty Mutual argue that, notwithstanding the initial denial of

the recommended treatment, penalties do not apply because the procedure was

subsequently approved within the sixty-day window provided for in La.R.S.

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23:1203(E). 1 Similar to the factual situation in Pete v. Quality Construction

Specialists, 09-642 (La.App. 3 Cir. 12/9/09), 25 So.3d 241, writ denied, 10-41 (La.

3/12/10), 28 So.3d 1029, the issue is not whether the authorization was ultimately

given within the sixty days, but whether the employer/insurer possessed any

factual or medical information to reasonably reject Dr. Jindia’s request when it did

so. In this case, Liberty Mutual performed no investigation, had no competent

medical advice upon which to base the denial, and merely relied on the opinion of

a medical provider who reached a different opinion from Dr. Jindia without having

ever examined Ms. Romero. Accordingly, we find that Garan and Liberty Mutual

failed to reasonably controvert Dr. Jindia’s request for the radiofrequency facet-

nerve ablation prior to denying approval. Based on this finding, we award Ms.

Romero $2,000.00 in penalties pursuant to La.R.S. 23:1201(F).

Termination of Indemnity Benefits

In her next assignment of error, Ms. Romero argues that the WCJ’s award of

penalties pursuant to La.R.S. 23:1201(G), rather than La.R.S. 23:1201(I), was error.

The former statute relates to a failure to timely pay benefits, while the latter relates

to a claim arising from the termination of benefits. Ms. Romero asserts that this is

a termination-of-benefits situation based upon Garan’s January 10, 2012 action.

In response to the appeal on this issue, Garan, in its appellate brief, argues

that the July 12, 2012 judgment awarding Ms. Romero penalties and attorney fees,

based on the untimely payment of her indemnity benefits, was a final, appealable

judgment. Thus, it claims that her appeal on this issue should be dismissed as

being untimely. We agree.

1
At the time this matter was tried, La.R.S. 23:1201(E) provided that “[m]edical benefits
payable under this Chapter shall be paid within sixty days after the employer or insurer receives
written notice thereof.

12

A judgment which determines the merits of an action, whether in part or in

whole, is a final judgment, which is appealable if the law provides for appeals in

such causes. La.Code Civ.P. arts. 1841, 2083. The Workers’ Compensation Act

provides that a workers’ compensation judgment is appealable to the court of

appeal for the judicial district in which the claimant filed his or her claim. La.R.S.

23:1310.5(A)(2). Furthermore, the delay for filing a devolutive appeal is governed

by La.Code Civ.P. art. 2087. That article provides that an appeal, which does not

suspend the effect of an appealable order or judgment, must be taken within sixty

days of the expiration of the delay for applying for a new trial or judgment

notwithstanding the verdict or from the date the trial court mails notice denying the

application for a new trial or judgment notwithstanding the verdict.

The WCJ’s July 12, 2012 judgment awarding Ms. Romero penalties based

on La.R.S. 23:1201(G) adjudicated the merits of that issue. Thus, the judgment

became a final, appealable judgment sixty days after July 23, 2012, since no party

filed an application for new trial. Ms. Romero’s motion and order for appeal was

filed on December 4, 2012. The failure to timely file a devolutive appeal creates a

jurisdictional defect, and neither this court “nor any other court has the

jurisdictional power and authority to reverse, revise or modify a final judgment

after the time for filing a devolutive appeal has elapsed.” Baton Rouge Bank &

Trust Co. v. Coleman, 582 So.2d 191, 192 (La.1991). Therefore, we find that Ms.

Romero’s appeal from the July 21, 2012 judgment was untimely. Pursuant to

La.Code Civ.P. art. 2162, a jurisdictionally-defective appeal can be dismissed at

any time. Accordingly, Ms. Romero’s appeal on this issue is dismissed.

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Mileage Reimbursement

In her final assignment of error, Ms. Romero argues that the WCJ correctly

awarded her penalties based on Garan’s failure to timely pay her mileage request.

However, she argues that the WCJ erred in awarding her only one penalty since

Garan was untimely in paying two separate mileage requests.

Louisiana Revised Statutes 23:1201(E) provides that the payment of medical

benefits shall occur within sixty days after the employer or insurer receives written

notice. The only dispute here is in the number of penalties Ms. Romero should

have received based on Garan’s untimely payment. Four separate mileage requests

dated September 15, 2011; September 29, 2011; October 6, 2011; and October 17,

2011, were attached to her February 2, 2012 motion and order for attorney fees.

Ms. Romero admitted that she was not involved in preparing the requests, other

than filling out the forms, and she had no personal knowledge as to when the

requests were mailed to Garan.

Ms. Dunn testified that the only mileage requests she found in her computer

system when she received Ms. Romero’s motion were the September 15 and

October 17, 2011 requests. She stated that she paid these by check on October 28,

2011. As to the remaining two requests, Ms. Dunn stated that they were not in her

computer system. She testified that all incoming mail goes to Liberty Mutual’s

mail department, where it is scanned into an electronic system and then

electronically attached to the appropriate file. Ms. Dunn stated that it is rare for

mailed items not to appear in the system. Generally, she said, she has no problem

receiving items mailed to her.

Ms. Dunn testified that after receiving Ms. Romero’s motion, she did not

pay the two remaining requests until Garan’s counsel received answers to

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discovery propounded on this issue. Thereafter, she issued a check for the

remaining requests on June 4, 2012.

In his oral reasons, the WCJ found that there was insufficient evidence in the

record to prove that Ms. Dunn received the September 29 and October 6, 2011

requests prior to the filing of Ms. Romero’s motion on February 16, 2012. The

WCJ further held that since the June 4, 2012 payment was more than sixty days

from the date the motion was filed, Ms. Romero was entitled to a single $2,000.00

penalty. The WCJ explained when questioned that only one penalty was awarded

because the mileage requests were attached to a single item.

Although multiple penalties are allowed by statute for multiple violations of

La.R.S. 23:1201(E), we find no error in the WCJ’s award of a single penalty. The

fact that Ms. Dunn received the September 15 and October 17, 2011 submissions is

insufficient to prove that she also received or should have received the September

29 and October 6, 2011 submissions. Ms. Romero bore the burden of proving that

Ms. Dunn received written notice of the two items. The record is devoid of such

evidence as the requests were mailed by regular mail rather than certified mail,

return receipt requested. Accordingly, we affirm the WCJ’s award of a single

penalty.

Attorney Fees

Based on our findings that Ms. Romero is entitled to penalties based on

Garan’s failure to authorize medical treatment, La.R.S. 23:1201(F), we amend the

WCJ’s judgment to award her an additional $2,500.00 in attorney fees for a total

attorney fee award of $6,000.00.

15

DISPOSITION

For the foregoing reasons, we reverse the judgment of the workers’

compensation judge rejecting Dena Romero’s claim for penalties and attorney fees

for the failure of Garan’s, Inc. and Liberty Mutual Insurance Company to approve

the recommended medical treatment, and we render judgment in her favor and

against Garan’s, Inc. and Liberty Mutual Insurance Company, awarding her a

$2,000.00 penalty and $2,500.00 attorney fee. We dismiss that portion of Dena

Romero’s appeal addressing the penalty award of the July 12, 2012 judgment as

being untimely filed and affirm the remainder of the judgment of the Workers’

Compensation Judge. We assess one-half of the costs of this appeal to Dena

Romero and one-half to Garan’s, Inc. and Liberty Mutual Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; RENDERED IN PART;
AND DISMISSED IN PART.

16

NUMBER 13-482

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

DENA ROMERO

VERSUS

GARAN’S INC.

AMY, J., dissenting in part.

I respectfully dissent, in part, from the majority opinion. Chiefly, I do not

find that, in this case, the retroactive/prospective construct is helpful with regard to

consideration of La.R.S. 23:1203.1. Rather, it seems to me that, by focusing upon

the parties’ “dispute,” the express wording of the statute accounts for the fact that

the Office of Workers’ Compensation maintains continuing jurisdiction over a

claim and that various issues arise during the life of that claim. Specifically,

La.R.S. 23:1203.1(I) anticipates the statute’s application “[a]fter the promulgation

of the medical treatment schedule” and subsequently, in Paragraph J, dictates the

use of the review procedures set forth “[i]f any dispute arises after January 1, 2011

. . . .” (Emphasis added.)

In this case, the dispute involves the November 2011 denial of the claimed

medical treatment. That date is after both the promulgation of the medical

treatment schedule and after the January 1, 2011 applicability point of La.R.S.

23:1203.1(J). Therefore, and in light of the continuing jurisdiction of the workers’

compensation judge to hear disputes related to a claim as they arise, I find the facts

that this accident occurred in 2000 and that the statute was not enacted until 2009

are irrelevant. Rather, the dispute did not arise before the statute’s legislatively

mandated date of application. In this sense, I do not see that the review procedure

of the statute is at all being applied retroactively. Instead, in the case before us,

that procedure is only being applied to disputes arising after that date.

Further, and in light of my opinion that La.R.S. 23:1203.1 is applicable, I do

not join in the majority’s award of attorney fees for work performed on appeal.

For these reasons, I dissent, in part, from the majority opinion and would

affirm the ruling of the workers’ compensation judge.

2

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-482

DENA ROMERO

VERSUS

GARAN’S, INC.

KEATY, Judge, dissenting in part.

For the reasons assigned in Cook v. Family Care Services, Inc., 12-108

(La.App. 3 Cir. 8/28/13), 121 So.3d 1274, I find no error in the WCJ’s retroactive

application of La.R.S. 23:1203.1 to deny Ms. Romero’s claim for penalties and

attorney fees based on Garan’s initial refusal to authorize the facet-nerve ablation

recommended by Dr. Jindia. Thus, I disagree with the majority’s decision to

overrule Cook, to reverse the WCJ’s denial of Ms. Romero’s claim for penalties

and attorney fees based on its finding that La.R.S. 23:1203.1 is substantive and

should only apply prospectively, and to award Ms. Romero $2,000.00 in penalties

and an additional $2,500.00 in attorney fees under La.R.S 23:1201(F) as it existed

at the time of Ms. Romero’s injury. Accordingly, I respectfully dissent from that

portion of the majority opinion. In all other respects, I agree with the majority

opinion.

NUMBER 13-482

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

DENA ROMERO

VERSUS

GARAN’S, INC.

CONERY, J., concurs in part, dissents in part and assigns reasons.

The majority convened an en banc hearing and found that the 2009

amendment to the Worker’s Compensation Act, La.R.S. 23:1203.1, applies

prospectively only. The statute as amended now requires that all medical disputes

arising after January 1, 2011, be submitted to a medical director. The majority is of

the opinion that the statute has a substantive effect and should be applied only

prospectively to claims arising after the effective date of the amendment, January 1,

2011, overruling a panel of this court in Cook v. Family Care Services, Inc., 13-108

(La.App. 3 Cir. 8/28/13), 121 So.3d 1274. I respectfully dissent from that ruling.

I concur with the dissents of Judges Pickett, Amy, and Keaty which correctly

point out that the particular issue in this case, whether the medical procedure

requested on November 22, 2011, was timely authorized, did not arise until after the

amendment became law in January, 2011, hence the statute was correctly applied

prospectively by the Worker’s Compensation Judge (WCJ). While I agree on that

issue, I write separately to stress that we should not have taken this case en banc and

should not have ruled on this issue at all. The majority’s decision was unnecessary

to a resolution of the issue under review. Proper exercise of judicial restraint

compels us to decide on more narrow grounds, if we can do so. Wise v. Bossier

Parish School Bd., 02-1525 (La. 6/27/03), 851 So.2d 1090.

If the defendant timely authorized the medical procedure at issue in this case,

there was no “denial,” hence no penalties are owed. Counsel for defendant correctly

pointed out and reaffirmed when questioned by this writer in oral argument that the

medical procedure in question was in fact approved within the sixty day time limit

set out in La.R.S. 23:1201(E)(1). The majority agreed with the timeline, but

nonetheless reversed the WCJ and awarded penalties and attorney fees based on an

initial “denial” of the procedure by the defendant’s utilization review committee (u.

r. committee).

The facts of this case are not in dispute. To briefly recap, on November 22,

2011, Dr. Jindia faxed a request form to Liberty Mutual, Garan’s worker’s

compensation insurer, seeking pre-authorization to perform a medical procedure on

the claimant, a “radio-frequency facet nerve ablation.” There was no information on

the request and no analysis or opinion from Dr. Jindia as to why the test was

necessary or how it would medically benefit the claimant. On November 30, Liberty

Mutual’s u. r. committee phoned Dr. Jindia and denied the request based on an

analysis by the nurse and physician that the procedure requested had not been shown

to be necessary by the Doctor. The law is clear that an employer/insurer can

reasonably controvert a claim if the employer/insurer “engaged in a nonfrivolous

legal dispute or possessed factual and/or medical information to reasonably counter

the factual and medical information presented by the claimant.” [sic] Pete v. Quality

Const. Specialists and Bridgefield Cas. Ins. Co., 09-642 (La.App. 3 Cir. 12/9/09), 25

So.3d 241(citing Brown vs. Texas-La Cartage, Inc., 98-1063, P. 9 (La. 12/1/98), 721

So. 2d. 885, 890). When a medical dispute arises, the statute as amended effective

January 1, 2011, now requires that the “aggrieved party,” in this case the claimant
2

file an appeal with the OWC medical director. La.R.S. 12:1203.1. No such appeal

to the medical director was filed. The WCJ had issued a previous order on May 2,

2005 in this case ordering defendant to pay all reasonable and necessary medical

expenses. After the committee’s “denial,” plaintiff did not file an immediate motion

requesting a hearing before the WCJ prior to final approval of the medical

procedure.

The record shows that shortly after the u. r. committee’s recommendation to

deny the procedure, the claims adjuster/supervisor for defendant, Ms. Dunn, then

reviewed the file. The evidence is uncontroverted that on December 22, 2011,

within thirty days of the initial “denial” of the procedure requested, Ms. Dunn

overruled the recommendation of the u. r. committee and called the doctor to

authorize the procedure. The doctor’s office was closed, so she called again on

December 27. Again no answer, so she left a message authorizing the procedure.

She sent a follow up fax on January 6, 2012, well within the sixty day time limit set

by La.R.S. 23:1201(E)(1), and approved the medical procedure. The doctor

performed the procedure and continued to treat the plaintiff, all of which was not in

dispute. Plaintiff was not prejudiced in any way by the initial “denial” of the u. r.

committee, as the procedure was, in fact, timely authorized and performed.

On February 16, 2012, plaintiff filed his first motion for penalties and attorney

fees, claiming that his compensation benefits were terminated without cause, and

certain mileage expenses had not been paid timely. No mention was made of the u.

r. committee’s initial “denial” of the medical procedure, perhaps because the

procedure had in fact been approved on December 22, 27, and January 6.

Defendant filed an exception of improper use of summary procedure. The

Exception of Improper Use of Summary Proceeding was granted and the WCJ
3

bifurcated the mileage issue. No supervisory writ was filed by plaintiff. Trial on the

improper termination of benefits issue was conducted on April 23, 2012 by the WCJ.

At the April 23, 2012 trial, there was a stipulation that weekly benefits were

stopped on January 9, 2012 and re-instated on February 9, 2012. No explanation

was given by defendant except to admit a mistake was made. The WCJ imposed a

$3,000 penalty for improper termination of weekly indemnity benefits calculated

pursuant to 23:1201 (G), failure to pay in accordance with a judgment. Defendant

did not appeal this issue.

Plaintiff appealed, asking this Court to reverse the WCJ on the bifurcation

issue. The majority found that issue was moot and I concur. The plaintiff also

assigned as error the failure of the WCJ to assess an $8,000 penalty at the April 23,

2012 hearing for improper termination of weekly indemnity benefits pursuant to

La.R.S. 23:1201. The majority found that the appeal taken on this issue was not

timely. I concur.

The mileage issue was rescheduled as a trial on the merits on July 18, 2012.

In the meantime, after plaintiff/appellee had lost on the improper termination of

benefits issue, on June 28, 2012, plaintiff filed an amended motion for penalties and

attorney fees claiming the medical procedure performed by Dr. Jindia had not been

timely authorized. That amended motion was also fixed for hearing as a trial on the

merits on July 18, 2012.

At the trial, the WCJ found two medical travel bills were not paid within sixty

days of the date of proper submission and awarded $2,000 in a single penalty, since

the bills were submitted together, and $3,000 in attorney fees. Defendants did not

appeal that ruling. Plaintiff appealed, claiming additional penalties. The majority

affirmed the WCJ on that ruling, and I concur.
4

Therefore, the only remaining issue is the question of penalties and attorney

fees for the alleged “denial” of the medical procedure recommended by Dr. Jindia.

After a full evidentiary hearing, the WCJ denied penalties and attorney fees on this

issue, assigning two reasons for his decision. In the first reason, the WCJ found that

the procedure mandated by the newly amended statute, La.R.S. 23:2303.1, was not

followed. The WCJ held that the claimant failed to file an appeal within fifteen days

of the “denial” of the medical procedure with the OWC medical director as now

required by the statute. The majority focuses on that portion of the ruling and,

incorrectly in my opinion, holds that the statute should be applied prospectively

only. Since the underlying worker’s compensation order requiring the defendant to

pay ongoing medical expenses had been issued in 2005, the majority held that the

claimant had a right to an immediate hearing before the WCJ and need not have

submitted the claim to the medical director.

The majority specifically found that La.R.S. 12:1203.1 affects substantive

rights and can only be applied to cases originating after January 1, 2011. The effect

of the majority ruling is that if a case was pending or had been heard by the WCJ

before the effective date of the amendment, as in this case, then even a particular

medical issue arising after the effective date had to be brought back before the WCJ,

not the medical director.

I disagree for the reasons assigned by Judges Pickett, Amy, and Keaty. The

particular issue in this case, failure to timely pay for the medical procedure requested

by Dr. Jindia on November 22, 2011, occurred after the effective date of the statute,

and the wording of the statute is clear that “all disputes” involving failure to provide

medical treatment arising after the effective date of the amendment must first be
5

submitted to the medical director.

In this case there was in fact a trial on the merits on the issue of “denial” of

medical benefits and the WCJ made factual findings. The majority gave short shrift

to the second basis for the WCJ’s ruling issued after he heard all the evidence. The

majority did not discuss or apply the manifest error standard to his findings. The

WCJ had specifically relied on the testimony of Ms. Dunn and found that the

procedure at issue had in fact been timely authorized and that no penalties and

attorney fees were owed. The issue of whether La.R.S. 23:1203.1 should be applied

prospectively or retrospectively should not have been considered by this court, as

there is no underlying “denial” of a medical procedure on which to base a decision.

Therefore, in my opinion, there was no need to call an en banc hearing and rule on

the prospective/retrospective application of the statute, as such a ruling is obiter

dictum.

Obiter Dictum has been classically defined as a judge’s opinion on a matter

that is not necessarily involved in the case or essential to its determination. BLACK’S

LAW DICTIONARY (9th ed. 2009). It is “a statement in a judicial opinion that could

have been deleted without seriously impairing the analytical foundations of the

holding.” Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). A case should be

decided on the narrowest grounds in order to avoid unnecessary obiter dictum. Wise

v. Bossier Parish School Bd., 02-1525 (La. 6/27/03), 851 So.2d 1090. See also

Cat’s Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601 (La.

10/20/98), 720 So.2d 1186; Sarnoff v. American Home Products Corp., 798 F.2d

1075 (7th Cir. 1986) (Posner, J.).

Had the WCJ refused to conduct a hearing on the merits and/or based his

decision only on the issue that the procedure outlined in the amended version of
6

La.R.S. 23:1203.1 had not been followed, and then denied penalties and attorney

fees on that basis only, the case may then have been ripe for us to consider proper

statutory interpretation. However, he did not. The WCJ specifically conducted a

full evidentiary hearing and found that the medical procedure at issue was timely

authorized. He accepted Ms. Dunn’s testimony. This case can and should be

decided on the narrow grounds of whether, under the manifest error rule, there was

sufficient evidence in the record to support the WCJ’s ruling. Tomasik v. La. State

Veterans Affairs Office, 13-451 (La.App. 3 Cir. 11/6/13), 124 So.3d 613; Foster v.

Rabalais Masonry, Inc., 01-1394 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, writ

denied, 02-1164 (La. 6/14/02), 818 So.2d 784. Magbee v. Federal Express, 12-77

(La.App. 3 Cir. 12/12/12), 105 So.3d 1048.

Citing Pete, 25 So.3d 241, and Phillips v. Diocese of Lafayette, 03-1241

(La.App. 3 Cir. 3/24/04), 869 So.2d 313, plaintiff/appellee argues that when the

employer denies a medical procedure arbitrarily, penalties and attorney fees are

owed even if the employer eventually approves the procedure within the sixty day

time delay provided by La.R.S. 23:1201(E)(1). He claims the u. r. committee

arbitrarily “denied” the claim.

Ms. Dunn’s testimony clearly refuted that conclusion. In fact, the majority

actually quoted from Ms. Dunn’s report explaining the u. r. committee’s findings

and its reasons:

The report received by Ms. Dunn from the peer-review practitioner
stated that after reviewing the criteria and current literature pertaining
to the recommended treatment, it reached the following conclusion.

The request is not medically necessary. The claimant does not have
physical examination findings consistent with facet originating pain
and does not have diagnostic imaging correlating with facet
degenerative changes in the records provided. A psychosocial
screening has not been provided for review and the claimant’s benefit
7

from the previous ablation has not been specified. Records do not
reflect that lower levels of care, including physical therapy, have been
exhausted. Given the above clinical information and guidelines
criteria, the request is denied.

Again, no explanation or opinion had accompanied Dr. Jindia’s request to

conduct the medical procedure. Even if the adjuster had not immediately approved

the procedure, there is a reasonable basis for the initial denial by the u. r. committee

established by the evidence.

The undisputed facts of this case are easily distinguishable from Pete and

Phillips. In Pete, on June 28, 2006, Pete saw Dr. Michel Heard, who recommended

a Lumbar Epidural Steroid Injection (LESI). The adjuster handling the claim denied

the request on July 14 with no reasons stated. On August 9, Pete filed a disputed

claim for compensation, penalties and attorney fees. The adjuster then reversed her

position and approved the treatment after she received the claim.

In affirming the WCJ’s finding that the claim had been arbitrarily denied, a

panel of this court stated, “Dr. Heard subsequently recommended two more LESI

series that the insurance adjuster treated in the same manner, first denying and then

approving the treatment.” Pete, 25 So.3d at 243. As noted by the panel, the WCJ

found factually that the denial of the first LESI series was arbitrary and capricious.

The panel of this court went on to state in Pete:

As the WCJ explained, no one could fault an adjuster who denied
treatment for good cause but, after receiving more information,
changed her mind. Noting that the record did not supply a valid
reason for the denial and that defendants failed to produce the adjuster
at the hearing so as to ascertain whether the denial was warranted, the
WCJ concluded that the denial was arbitrary and capricious.

Id. at 244.

In this case, the opposite occurred. The initial request for medical treatment

was sent to defendant’s u. r. committee. The committee considered and
8

recommended denial of the request based on valid reasons stated. More importantly,

the adjuster did timely approve the procedure some six months before the claim was

filed.

The majority cites Magbee v. Federal Express, 12-77 (La.App. 3 Cir.

12/12/12), 105 So.3d 1048 (citing LeMelle v. Wal-Mart Stores, Inc., 04-527

(La.App. 3 Cir. 9/29/040, 883 So.2d 526), for the proposition that the “mere

production of a different opinion of a doctor who never examined the claimant does

not constitute competent medical advice sufficient to reasonably controvert the

claims.” However, an employer/insurer has a continuing duty to assess factual

information and re-evaluate its position when warranted. Pete, 25 So.3d 241. Ms.

Dunn received and reviewed the u. r. report, pursuant to her responsibility. She then

immediately overruled the u. r. panel’s recommendation and timely approved the

recommended treatment. The majority even quoted Ms. Dunn’s reasoning in its

opinion:

Ms. Dunn testified that less than one month later, on December 22,
2011, she attempted to call Dr. Jindia’s office to inform him that she
would approve the treatment. In her December 22, 2011 office note,
she stated:

Repeat RFA was denied by preauth – prior RFA done in June and did
help clt symptoms and appears reasonable for repeat 1 x a year per my
experience with prior SMO on RFA’s. If block helped then RFA is
indicated and repeat is indicated and repeat appropriate yearly if relief
lasts 6-12 mos. It has been 6 mos however does not appear rx usage
decreased and we dont [sic] have specific info on her benefit from the
prior ablation. I feel it is prudent to approve the repeat RFA until we
can get SMO to comment on the frequency of repeat RFA’s – this is
necessary to avoid 1008 until we can have issue properly addressed.

Called the dr. office to approve but they are closed now for the
holiday until Tuesday. I will call then and approve auth. [sic]

In addition, unlike the adjuster in Pete, Ms. Dunn appeared at trial and testified,

“When I realized U. R. had denied it, I wanted to approve it. So I called.”
9

Unlike the facts in Pete, Magbee, and LeMelle, the WCJ found factually that

the treatment had been approved timely within the sixty day time period. And

unlike the facts in Pete, the amended motion for penalties for failure to timely

authorize the medical procedure in this case was not filed before final approval, but

months later, on June 28, 2012, shortly before the July 18, 2012 trial.

At trial, the WCJ relied on Ms. Dunn’s testimony and found factually, “Ms.

Dunn subsequently over-road the utilization review opinion and approved the

procedure on January 6, 2012, by fax. The approval was received within sixty

days.” And again, “Ms. Dunn voluntarily over-road the U. R. determination within

sixty days. Accordingly, the claim for a penalty regarding the radio frequency facet

nerve ablation is denied.” Under the manifest error rule, his findings must be

affirmed unless clearly wrong. Magbee, 105 So.3d 1048; Tomasik, 124 So.3d 613;

Foster, 811 So.2d 1160.

Phillips can also be easily distinguished. In Phillips, the defendant denied

plaintiff’s request for continued psychotherapy on three different occasions,

February 5, 2001, February 28, 2001, and July 19, 2001, relying on the utilization

review process plus video surveillance calling plaintiff’s credibility into question.

The defendant never did authorize the treatment until ordered to do so by the WCJ

after trial on the merits. The WCJ found that defendant’s refusal was arbitrary and

capricious and a panel of the court affirmed, applying the manifest error rule.

Again, just the opposite happened in this case. The WCJ found that even

though the u. r. committee recommended denial, Ms. Dunn, the claims supervisor

actually responsible for the final decision, timely approved the procedure within the

statutory sixty day time period, and long before the motion for penalties and attorney

fees was filed on June 28, 2012.
10

Faced with the uncontroverted facts that the majority itself cited in its opinion,

the majority then found “that Garan failed to reasonably controvert Dr. Jindia’s

request for the radiofrequency facet-nerve ablation prior to denying approval.”

Respectfully, the majority failed to properly take into account that there was a full

trial on the merits of this particular issue, and that the WCJ made factual findings

and accepted Ms. Dunn’s testimony. The majority failed to appropriately apply the

manifest error rule to the WCJ’s findings. Magbee, 105 So.3d 1048; Tomasik, 124

So.3d 613; Foster, 811 So.2d 1160. The WCJ’s opinion on this issue should be

affirmed.

CONCLUSION

In my view, this is not the type of case where we should convene an en banc

panel and issue a far reaching opinion “overruling” a panel of this court on the

important issue of whether La.R.S. 23:1203.1 should be applied prospectively or

retrospectively.

Proper exercise of judicial restraint is warranted. There is no need to rule on

or discuss the statutory interpretation of La.R.S. 23:1203.1. The case can and should

be decided on narrow grounds and affirmed under the manifest error rule. Magbee,

105 So.3d 1048; Tomasik, 124 So.3d 613; Foster, 811 So.2d 1160; see also Wise,

851 So.2d 1090. In this case, there is no dispute about the facts. The WCJ correctly

applied the law to the facts and his decision should be affirmed in all respects.

11