KEITH THOMAS NOYA vs. versus CITY OF NEW ORLEANS

KEITH THOMAS NOYA
VERSUS
CITY OF NEW ORLEANS
*
*
*
*
* * * * * * *
NO. 2026-CA-0116
COURT OF APPEAL
FOURTH CIRCUIT
STATE OF LOUISIANA
APPEAL FROM
THE OFFICE OF WORKERS’ COMPENSATION
NO. 22-05268, DISTRICT “08”
HONORABLE Catrice Johnson-Reid, The Office of Workers’ Compensation
* * * * * *
JUDGE SANDRA CABRINA JENKINS
* * * * * *
(Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins,
Judge Dale N. Atkins)
LOBRANO, J., CONCURS IN THE RESULTS
ATKINS, J. CONCURS IN THE RESULT
William Roy Mustian, III
MUSTIAN LAW FIRM, LLC
2540 Severn Ave
Suite 400
Metairie, LA 70002
COUNSEL FOR PLAINTIFF/APPELLEE
Christopher Marc Landry
HICKCOX, ROBERTSON & STUNDA, LLC
2315 Florida Street, Bldg. 200, Suite 212
Mandeville, LA 70448
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
OCTOBER 19, 2026

-- 1 of 14 --

1
SCJ
This is a workers’ compensation matter. The City of New Orleans, New
Orleans Fire Department (“City”), appeals the August 1, 2025 judgment of the
workers’ compensation judge (“WCJ”) in favor of the claimant, Keith Noya (“Mr.
Noya”). The WCJ ruled that the City was arbitrary and capricious in terminating
Mr. Noya’s indemnity and medical benefits, and ordered Mr. Noya’s benefits be
reinstated from November 1, 2022, at zero earning capacity in the amount of $649
per week and awarded $3,351.53 for out-of-pocket medical expenses. The WCJ
also found that Mr. Noya was entitled to penalties in the amount of $4,000.00 and
attorney’s fees in the amount of $4,000.00. For the reasons that follow, we affirm
the August 1, 2025 judgment.
FACTS AND PROCEDURAL HISTORY
Mr. Noya was employed as a firefighter for approximately thirty years. On
December 12, 2015, Mr. Noya injured his back, shoulder, knee and neck when he
slipped in water while fighting a fire. The City began paying Mr. Noya indemnity
benefits on December 20, 2015.

-- 2 of 14 --

2
Mr. Noya’s treating physician was Dr. Patrick Waring (“Dr. Waring”), while
the City selected Dr. Chad Domangue (“Dr. Domangue”) as its physician of choice
pursuant to La. R.S. 23:1121. Dr. Domangue evaluated Mr. Noya on several
occasions and issued medical reports.
In his November 24, 2020 report, Dr. Domangue diagnosed lumbar facet
syndrome/lumbar spondylosis. He found no acute pathology or neurological
abnormalities and concluded that additional rhizotomy procedures were not
justified as treatment for the work-related injury. He further opined that Mr. Noya
had reached maximum medical improvement.
In light of the dispute concerning Mr. Noya’s medical condition and
disability status. The City requested an independent medical examination pursuant
to La. R.S. 23:1123. On May 6, 2022, Office of Workers’ Compensation
(“OWC”) appointed Dr. Andrew Todd (“Dr. Todd”).
On September 26, 2022, Mr. Noya, through his attorney, received a Form
1002,1 notifying him of controversion of medical benefits. Thereafter, on October
31, 2022, Mr. Noya received another Form 1002, noting that his indemnity benefits
were terminated. Mr. Noya filed a Form 1008-Disputed Claim for Compensation
with the OWC.
A one-day trial was held on September 25, 2024. The parties stipulated the
following:
1. That claimant, Keith Thomas Noya, was an employee of the
City of New Orleans and in the course and scope of his
employment on December 12, 2015.
2. That claimant, Keith Thomas Noya, suffered an on the job
incident on December 12, 2015.
1 The Form 1002 is a “Notice of payment modification, suspension, termination or controversion
of compensation or medical benefits.”

-- 3 of 14 --

3
3. That claimant, Keith Thomas Noya, had an average weekly
[wage] on December 12, 2015[,] of $973.50.
4. That following the incident of December 12, 2015,
indemnity benefits were paid to claimant, Keith Thomas
Noya, from December 20, 2015, to October 31, 2022, when
supplemental earnings benefits [(“SEB”)] were terminated.
5. That Dr. Andrew Todd was appointed by the OWC pursuant
to [La. R.S.] 23:1123.
6. That all reasonable and related medical bills were paid in
accordance with the Louisiana Fee Schedule through
October 31, 2022.
7. That indemnity and medical benefits were terminated via
Form 1002 dated October 31, 2022, and at the time of
termination of indemnity benefits, the claimant, Keith
Thomas Noya, was being paid SEB benefits at the
[temporary total disability] rate.
Subsequent to trial, the WCJ took the matter under advisement and ordered
each party to submit a post-trial memorandum. On May 14, 2025, the WCJ issued
a judgment that held that the City acted arbitrarily and capricious in terminating
Mr. Noya’s medical treatment and indemnity benefits. Mr. Noya moved to amend
the May 14, 2025 judgment for the purpose of clarifying decretal language. On
August 1, 2025, the WCJ granted the motion and amended the May 14, 2025
judgment to reflect:
[]IT IS ORDERED ADJUDGED AND DECREED that there
be judgment herein in favor of Keith Noya and against The City of
New Orleans awarding [SEB] from November 1, 2022[,] at zero
earning capacity in the amount of $649 per week, with credit for all
compensation paid from that date, together with legal interest from
date of judicial demand and for all costs of these proceedings;
IT IS FURTHER ORDERED AND DECREED that there be
judgment herein in favor of Keith Noya and against the City of New
Orleans in the amount of THREE THOUSAND THREE HUNDRED
FIFTY ONE ($3,351.53) AND 53/100THS DOLLARS, together with
legal interest from date of judicial demand, representing out of pocket
medical expenses;
IT IS FURTHER ORDERED AND DECREED that there be
judgment herein in favor of Keith Noya and against the City of New

-- 4 of 14 --

4
Orleans awarding penalties in the amount of FOUR THOUSAND
($4,000) DOLLARS and awarding attorney’s fees in the amount of
FOUR THOUSAND ($4,000) DOLLARS, together with legal interest
from date of judicial demand[].
The City appeal follows.
STANDARD OF REVIEW
“In workers’ compensation cases, appellate courts apply the manifest error,
or clearly wrong, standard of review to factual findings by the [OWC].” Lentz v.
City of New Orleans, Police Dep’t, 2022-0500, p. 4 (La. App. 4 Cir. 12/15/22), 353
So.3d 1060, 1064 (citing Matthews v. Big Easy Janitorial, L.L.C., 2022-0164, p. 5
(La. App. 4 Cir. 8/10/22), 346 So.3d 325, 330). “The OWC’s findings ‘as to
whether the worker’s testimony is credible and whether the worker has carried his
burden of proof are factual determinations that may not be disturbed on review
absent a showing of manifest error.’” Singleton v. Dillard Univ., 2023-0053, p. 5
(La. App. 4 Cir. 10/4/23), 382 So. 3d 902, 906 (quoting Duran v. Turner Indus.
Grp., LLC, 2011-0210, p. 4 (La. App. 4 Cir. 7/20/11), 70 So.3d 1074, 1076). “This
standard of review acknowledges that the trial courts are more appropriately
equipped to weigh the credibility of live witnesses and upholds the unique
functions of the trial and appellate courts.” Matthews, 2022-0164, p. 6, 346 So.3d
at 331 (citing Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880,
883 (La. 1993)).
DISCUSSION
The City assigns seven errors for review,2 which we summarize as follows:
2 The City’s assignments of error are:
1. The court erred in finding that claimant’s continuing back injury and related problems
were causally related to the December 12, 2015 work accident.
2. The court erred in ordering reinstatement of indemnity and medical benefits retroactive to
October 31, 2022, at the rate of $649.00 per week.

-- 5 of 14 --

5
1. The trial court erred in finding that Mr. Noya’s ongoing back
problems were causally related to the December 12, 2015 work
accident and in reinstating indemnity benefits at $649 a week,
retroactive to October 31, 2022, ordering continuing medical coverage
and $3,513.53 in past-due medical benefits.
2. The trial court erred in finding the termination arbitrary and
capricious, awarding penalties and attorney’s fees, and in its handling
of costs and judicial interest.
3. The trial court erred in not finding that the City pled La. R.S. 23:
1221(3).
4. The trial court erred in denying the motion for new trial.
Reinstatement of Benefits
The City argues that the WCJ erred in finding that Mr. Noya’s continuing
back injury was related to the December 12, 2015 accident and, as a result, erred in
reinstating Mr. Noya’s indemnity benefits and medical coverage. The City asserts
that Mr. Noya’s condition is no longer related to the incident and relies on Dr.
Todd’s opinion that Mr. Noya has reached maximum medical improvement and
has returned to his pre-injury status. Mr. Noya counters that Dr. Todd’s opinion
went beyond the scope of La. R.S. 23:1123 and that he based his opinion on
causation.
Dr. Todd was appointed under La. R.S. 23:1123, which provides:
If any dispute arises as to the condition of the employee, or the
employee’s capacity to work, the assistant secretary, upon application
3. The court erred in finding that the City remained responsible for continued medical
coverage and for $33,515.53 in past-due medical benefits following termination of
benefits on October 31, 2022.
4. The court erred in finding that the City acted arbitrarily and capriciously in terminating
indemnity and medical benefits and in awarding penalties and attorney fees.
5. The court erred in awarding claimant all costs associated with the litigation and judicial
interest.
6. The court erred in failing to find that the City had properly pleaded the limitations
contained in La. R.S. 23:1221(3) as an affirmative defense.
7. The court erred in denying the City’s motion for new trial, as the judgment was contrary
to the law and evidence presented at trial and the grounds asserted in the motion
warranted a new trial on the merits.

-- 6 of 14 --

6
of any party, shall order an additional medical opinion regarding an
examination of the employee to be made by a medical practitioner
selected and appointed by the assistant secretary. The medical
examiner shall report his conclusions from the examination to the
assistant secretary and to the parties and such report shall be prima
facie evidence of the facts therein stated in any subsequent
proceedings under this Chapter.
When there are disputes in medical opinions, “a trier of fact is required to
weigh the testimony of all medical witnesses.” Leidelmeijen v. Ferncrest Manor
Nursing Home Luba Workers’ Comp., 2015-1216, p. 25 (La. App. 4 Cir. 3/16/16),
191 So.3d 38, 54 (citation omitted). “[A] workers’ compensation judge ‘is required
to weigh the testimony of all medical witnesses’ and ‘must evaluate all of the
evidence presented in making a decision as to the claimant’s condition.’” Safford v.
New Orleans Fire Dep’t, 2023-0495, p. 36 (La. App. 4 Cir. 2/1/24), 384 So.3d 909,
934 (quoting Bell v. Mid City Printers, Inc., 2010-0818, pp. 10-11 (La. App. 4 Cir.
12/22/10), 54 So.3d 1226, 1234). “In determining the weight to give the opinion of
an [independent medical examiner (“IME”)], the workers’ compensation judge can
consider, in pertinent part, that physician’s opportunity to observe the patient and
any other relevant factors.” Id. (citing Bell, 2010-0818, p. 11, 54 So.3d at 1234).
Here, Dr. Waring opined that Mr. Noya’s current pain and need for
treatment is due to the work injury. Dr. Waring also opined that Mr. Noya has a
permanent impairment of the lumbar spine and is not capable of returning to work
as a firefighter. Conversely, Dr. Domangue opined that Mr. Noya’s imaging
revealed chronic degenerative changes, which are attributable to his age. Dr.
Domangue opined that Mr. Noya has reached maximum medical improvement.
Pursuant to La. R.S. 23:1123, Dr. Todd was tasked with providing an
independent medical examination to address the condition of the employee and/or
the capacity to return to work. Dr. Todd opined that Mr. Noya most likely had

-- 7 of 14 --

7
preexisting facet arthropathy that became symptomatic as a result of the work
injury. Dr. Todd further opined that Mr. Noya reached maximum medical
improvement, any acute injury Mr. Noya sustained resolved long ago, and what
remains is a chronic condition. Additionally, Dr. Todd provided that Mr. Noya’s
ongoing pain is not related to his work injury.
At the September 25, 2024 hearing, Mr. Noya testified that, while working a
fire, he entered a bathroom where water covered the floor. Mr. Noya provided that
his boots slipped, throwing his leg out, and he fell onto his right knee, struck his
right shoulder on the tub, and his back was “wrenched” or twisted. He identified
the injuries as right shoulder, right leg/knee, and back. Mr. Noya denied having
any back problems or treatment before the accident, other than occasional
discomfort when lifting something heavy while working a fire.
The WCJ evaluated the evidence and weighed the conflicting medical
opinions regarding the cause and extent of Mr. Noya’s continuing back condition.
We agree with Mr. Noya that Dr. Todd’s opinion on causation exceeded the scope
of La. R.S. 23:1123, which directs the IME to address the employee’s condition
and capacity to work. In any event, the IME’s report is prima facie evidence, not
conclusive evidence. While Dr. Todd opined that Mr. Noya’s ongoing pain was
unrelated to the work accident, the WCJ was not required to accept that opinion
over the contrary opinion of Dr. Waring or the other evidence presented.
Additionally, it is undisputed that Mr. Noya had an employment-related
injury and treated with Dr. Waring consistently after the December 12, 2015
accident. Dr. Waring had a greater opportunity to observe Mr. Noya’s condition
over time than the physicians who examined him, and the WCJ was entitled to give
the treating physician’s opinion greater weight on that basis.

-- 8 of 14 --

8
As such, we do not find that the WCJ erred in finding that Mr. Noya’s injury
was causally related to the work accident and reinstated Mr. Noya’s benefits.
Although a claimant must demonstrate that his employment somehow caused or
contributed to the disability, he need not establish the exact cause. Lee v. Smitty’s
Supply, Inc., 2024-0460, p. 6 (La. App. 1 Cir. 12/20/24), 404 So.3d 916, 924; see
also Connor v. Jones Bros. Enters., 606 So.2d 996, 1001 (La. App. 4th Cir. 1992).
Accordingly, we find no merit in this assignment of error.
Penalties and Attorney’s Fees
The City argues that the WCJ erred in finding that it acted arbitrarily and
capriciously in the handling of Mr. Noya’s claim. The City asserts that it relied
upon findings of two separate doctors in this matter.
“The determination of whether the employer’s action in terminating benefits
was arbitrary and capricious is a factual one subject to the manifest error standard
of review.” Cembell Indus., Inc. v. Smith, 2024-0348, pp. 21-22 (La. App. 4 Cir.
2/11/25), 414 So.3d 661, 676, writ denied, 2025-00447 (La. 6/17/25), 411 So.3d
632
Louisiana Revised Statutes 23:1201(I) provides in relevant part:
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.
“[P]enalties and attorney[’s] fees in workers’ compensation cases are
essentially penal in nature, being imposed to discourage indifference and
undesirable conduct by employers and insurers.” Lentz, 2022-0500, p. 9, 353 So.3d
at 1067 (quoting Iberia Med. Ctr. v. Ward, 2009-2705, pp. 18-19 (La. 11/30/10),

-- 9 of 14 --

9
53 So.3d 421, 433-34). Moreover, “penal statutes are to be strictly construed.” Id.
(quoting Iberia, 2009-2705, p. 19, 53 So.3d at 434).
In determining whether an employer acted arbitrarily and capriciously in a
workers’ compensation matter:
Courts must evaluate “whether the employer or his 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 throughout the time he refused to pay all or
part of the benefits allegedly owed.” Brown v. Texas-LA Cartage,
Inc., 98-1063, p. 9 (La. 12/1/98), 721 So. 2d 885, 890. Employers
must have “some valid reason or evidence upon which to base his
denial of benefits.” Id. Stated another way, employers must possess an
“articulable and objective reason to deny benefits at the time it took
action.” Authement [v. Shappert Eng’g], [20]02-1631, p. 11, [La.
2/25/03,] 840 So. 2d [1181,] 1188 (citing Williams v. Rush Masonry,
Inc., 98-2271 (La. 6/29/99), 737 So. 2d 41, 46).
Id. at pp. 9-10, 353 So.3d at 1067 (quoting Matthews, 2022-0164, pp. 18-19, 346
So.3d at 337).
In the instant matter, the Form 1002 dated October 31, 2022, provided that
Mr. Noya’s benefits were terminated because “[o]ngoing disability no longer
related to on the job accident. Claimant is at pre-injury status as indicated by OWC
[a]ppointed IME, Dr. Todd.” The City’s claims adjuster, Robert Drake (“Mr.
Drake”), testified that the form was issued because Mr. Noya’s medical treatment
would not be related to the work injury. Mr. Drake stated that, in comparing the
differing physician opinions, he gave the most weight to Dr. Todd’s opinion.
As provided above, Dr. Todd was appointed to address Mr. Noya’s
condition and/or his capacity to return to work, and he exceeded that scope by
opining that Mr. Noya’s ongoing pain is not related to the work injury. The
termination thus rested principally on a causation opinion that La. R.S. 23:1123 did
not contemplate. The City also had contrary medical information from Dr. Waring,

-- 10 of 14 --

10
who attributed Mr. Noya’s ongoing condition to the work injury, and the record
does not show that the City articulated a reason for discounting that opinion.
In light of the information, we cannot conclude that the WCJ erred in
awarding attorney’s fees and penalties to Mr. Noya.
Affirmative Defense
The City argues that La. R.S. 23:1221(3) was properly pled in its answer and
the WCJ erred in not considering it. We disagree.
Louisiana Code of Civil Procedure Article 1005 requires that affirmative
defenses be specifically pled in the answer. “Generally, an affirmative defense
must be pleaded or it is waived.” Fin & Feather, LLC v. Plaquemines Par. Gov’t,
2016-0256, p. 7 (La. App. 4 Cir. 9/28/16), 202 So.3d 1028, 1033 (quoting Allvend,
Inc. v. Payphone Comm’ns Co., 2000-0661, p. 6 (La. App. 4 Cir. 5/23/01), 804
So.2d 27, 30). When a defendant fails to plead an affirmative defense, it may not
offer proof on it. Davis v. Nola Home Constr., L.L.C., 2016-1274, p. 9 (La. App. 4
Cir. 6/14/17), 222 So.3d 833, 841 (citing Dixie Sav. & Loan Ass’n v. Pitre, 99-154,
p. 24 (La. App. 5 Cir. 7/27/99), 751 So.2d 911, 924).
The City relies on La. R.S. 23:1221(3)(d), which provides in relevant part
that the right to SEB terminates “[w]hen the employee retires; however, the period
during which supplemental earnings benefits may be payable shall not be less than
one hundred four weeks.” La. R.S. 23:1221(3)(d)(iii).
In its answer, the City pled “[e]mployer claims all rights to any
credits/offsets against compensation benefits for the amounts earned by the
employee and/or which the employee is capable of earning pursuant to La. R.S.
23:1221(3), as well as to any and all credits which may be due to the employer
pursuant to La. R.S. 23:1223 through 1225.” However, the OWC Compensation

-- 11 of 14 --

11
Hearing Rule 6007 requires that trial issues be listed in the pretrial statement. The
pretrial statement shall include “issues to be litigated.” At the time of this OWC
proceeding, this part of Rule 6007 stated: “[a]mendments to the pretrial statement
shall only be by written motion and permitted only for good cause shown. No new
issues shall be raised except by written order of the judge for good cause or upon
mutual agreement of the parties.” La. Admin. Code tit. 40, Pt. I, § 6007(B).
The WCJ found that the City’s pretrial statement did not list the retirement
defense as an issue for decision and did not mention the effect of Mr. Noya’s
retirement on his entitlement to SEB. Additionally, the City never moved to amend
the pretrial statement.
We find that the City abandoned its defense by omitting it from the pretrial
statement and then failing to follow the amendment procedure that Rule 6007(B)
requires. Mr. Noya had no notice that he would need to address it at trial, and the
WCJ and the parties tried the case on the issues the pretrial statement identified.
Therefore, we do not find that the WCJ erred in declining to consider the
retirement defense. This assignment of error lacks merit.
Motion for New Trial
The City contends that the WCJ erred in denying its motion for new trial.
The City argues that the judgment is contrary to the law and the evidence present at
trial.
A new trial shall also be granted “[w]hen 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 in any case if there is good ground therefor, except as otherwise provided
by law.” La. C.C.P. art. 1973. “An appellate court reviews a trial court’s ruling on

-- 12 of 14 --

12
a motion for new trial under an abuse of discretion standard.” George Kellett &
Sons, Inc. v. Lucas & Sons Builders, 2023-0186, pp. 5-6 (La. App. 4. Cir.
11/28/23) 377 So.3d 1247, 1251 (citing FIE, LLC v. New Jax Condo Ass’n, Inc.,
2016-0843, 2017-0423, p. 22 (La. App. 4 Cir. 2/21/18), 241 So.3d 372, 391). “A
party seeking a new trial on the basis of newly discovered evidence must
demonstrate that ‘it has done all that is reasonable to lead to timely discovery of
the evidence.’” Bd. of Comm’rs of Port of New Orleans v. Pilko & Assocs. 2019-
0624, 0625, p. 8 (La. App. 4 Cir. 2/12/20), 292 So.3d 956, 961 (quoting Show &
Tell of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church, 2015-0068,
p. 19 (La. App. 4 Cir. 6/24/15), 171 So.3d 1136, 1146).
Based on our examination of the record and the City’s failure to demonstrate
newly discovered evidence, we find no basis to conclude that the WCJ’s judgment
is contrary to the law or the evidence. Thus, we find no abuse of discretion in the
WCJ’s ruling denying the motion for new trial.
Mr. Noya’s Request for Additional Attorney’s Fees
Mr. Noya attempted to answer this appeal by including a section in his brief
identified as “Answer to Appeal: Increase In Attorney’s Fees”. Mr. Noya sought an
additional two thousand five hundred dollars ($2,500.00) in attorney’s fees to
cover the cost of his counsel’s work in opposing the City’s appeal.
Louisiana Code of Civil Procedure Article 2133(A) provides in relevant 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. In such cases, he must file an answer to the appeal,
stating the relief demanded. . . .” “[T]he proper method for requesting attorney’s
fees is by doing so in an answer to the appeal and ‘[a]n assertion in a brief cannot

-- 13 of 14 --

13
serve as an answer to appeal.’” Safford, 2023-0495, p. 42, 384 So.3d at 938
(quoting Clover v. Redfish Rentals, Inc., 2022-470, p. 17 (La. App. 3 Cir. 2/2/23),
357 So.3d 522, 532).
In light of Mr. Noya requesting attorney’s fees in his appellate brief, he did
not comply with the correct procedure by filing an answer to the appeal.
Accordingly, we deny Mr. Noya’s request for an additional two thousand five
hundred dollars ($2,500.00) in attorney’s fees for defending this appeal.
CONCLUSION
For the foregoing reasons, we affirm the August 1, 2025 judgment.
AFFIRMED

-- 14 of 14 --