author: hPEATROSS, J.

text:
    SUNSET REALTY, INC., Plaintiff-Appellees, v. Alfred J. ANTONINI and Alva Jane Marquez Antonini, Defendants-Appellants.
    No. 36,788-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      Mayer, Smith & Roberts, L.L.P. by: David F. Butterfield, for Appellants.
    Theus, Grisham, Davis & Leigh, L.L.P. by: Edwin K. Theus, Jr., Monroe, for Ap-pellee.
    Before CARAWAY, PEATROSS & DREW, JJ.
   hPEATROSS, J.

This appeal arises from a summary judgment granted by the trial court in favor of the plaintiff, Sunset Realty, Inc. (“Sunset”), and against the defendants, Alfred J. Antonini and Alva Jane Marquez Antonini (collectively “the Antoninis”). The Antoninis appeal'the judgment of the trial court. For the reasons stated herein, we affirm.

FACTS

The Antoninis were the record owners of certain immovable property situated in Ouachita Parish. The property is described as:

The East one-half (E/2) of Lot Twenty (20) of that portion of the Fennell Estate situated South of DeSiard Road, being a portion of Ingleside Plantation, in Sections 21, 28, 37 and 38, Township 18 North, Range 4 East, Ouachita Parish, Louisiana, as per plat recorded in Plat Book 8, page 27 of the records of said parish; said tract fronting 225.005 feet on the South line of Blanks Street and running back into said Lot Twenty (20) between parallel lines, one of which is the East line of Lot Twenty (20), a distance of 1749.08 feet, more or less, on said East line, to the South line of said Lot Twenty (20).

As a result of the Antoninis’ failure to pay property taxes on this property for the tax year 1996, the Ouachita Parish Sheriff conducted a tax sale of the property on June 11, 1997. At the Sheriffs tax sale, the property at issue was sold to Charles R. Theus (“Theus”) for the sum of $13,057.05. The Tax Collector’s Deed conveying the property to Theus was recorded in the conveyance records in Ouachita Parish on June 18, 1997. The deed described the property as:

El/2 Lot 20 Fennell Est. lying S of De Siard St & Frtg 225.005 Ft. on S side Blanks, depth S 1749.08 Ft. R-67606, Ouachita Parish, Louisiana.

Thereafter, Theus paid the property taxes on the property. On September 28, 2000, he sold the property to Sunset. On that same day, the | ¡.Ouachita Parish Sheriff recorded a document entitled “Act of Correction” in the conveyance records in Oua-chita Parish, substituting for the shortened description of the property in the Tax Collector’s Deed recorded on June 18, 1997, a longer description of the property. The property was then described as:

The East one-half (E/2) of Lot Twenty (20) of that portion of the Fennell Estate situated South of DeSiard Road, being a portion of Ingleside Plantation, in Sections 21, 28, 37 and 38, Township 18 North, Range 4 East, Ouachita Parish, Louisiana, as per plat recorded in Plat Book 8, page 27 of the records of said parish; said tract fronting 225.005 feet on the South line of Blanks Street and running back into said Lot Twenty (20) between parallel lines, one of which is the East line of Lot Twenty (20), a distance of 1749.08 feet, more or less, on said East line, to the South line of said Lot Twenty (20).

The deed which conveyed the property to Sunset and which contained the longer description was recorded in the conveyance records in Ouachita Parish on October 6, 2000. At no point did the Antoninis ever take any steps to redeem the property.

On September 10, 2001, Sunset sued the Antoninis to quiet the tax title of the property at issue, pursuant to the provisions of La. R.S. 47:2228. Mr. Antonini filed his answer on October 23, 2001, and Mrs. An-tonini filed her answer on October 31, 2001. The Antoninis did not conduct any discovery, nor did they take any other action. On February 21, 2002, Sunset filed a motion for summary judgment, attaching to the motion and the supporting affidavit what it believed to be the Tax Collector’s Deed conveying the property from the An-toninis to Theus. Also attached to the motion for summary judgment was the “Act of Correction” dated September 28, 2000, and the deed conveying the property from Theus to RSunset. The motion for summary judgment was set to be heard on March 13, 2002.

On March 11, 2002, the Antoninis filed an opposition to Sunset’s motion for summary judgment, alleging that Sunset’s motion was defective because of material issues of fact in dispute and because Sunset was not entitled to judgment as a matter of law. Among the issues of material fact alleged by the Antoninis to be in dispute were whether Sunset was the proper party plaintiff; whether a Mr. Joseph H. Hakim (“Hakim”) (who had signed the deed for Sunset) had authority to act on behalf of Sunset in the transactions of the property at issue; whether the three-year redemption period to reclaim the property had expired; whether there were fatal defects in the chain of title for the property; whether Sunset legitimately acquired the property; and whether Sunset was actually a corporation. On the same day the Antoninis filed the opposition to Sunset’s motion for summary judgment, Sunset filed a supplement to its motion for summary judgment because Sunset had erroneously attached to its original motion for summary judgment a Tax Collector’s Deed that was not the Tax Collector’s Deed of the property at issue. In the supplement to its motion for summary judgment, Sunset attached the correct Tax Collector’s Deed.

On March 13, 2002, the hearing was held on the motion for summary judgment. At the time of the hearing, Mr. Antonini was incarcerated in a federal prison in California. The trial judge granted Sunset’s motion for summary judgment; but, because of Mr. Antonini’s incarceration, the trial _jjjudge stayed the signing of a formal judgment for a period of 45 days to allow time for the defendants to “traverse if necessary.” Mr. and Mrs. Antonini made no other filings; and, on May 8, 2002, the trial judge signed a formal judgment granting summary judgment in favor of Sunset, quieting Sunset’s tax title to the property at issue. The Antoninis now appeal, raising the following assignments of error:

1. The trial judge erred in allowing Sunset to file a “Supplement” to its motion for summary judgment two days before the hearing, and without requiring Sunset to have it formally served; and
2. The trial judge erred in granting summary judgment in favor of Sunset when there were genuine issues of material fact concerning Sunset’s ownership of the property.

DISCUSSION

Genuine Issues of Material Fact

We will first address the Antoninis’ second assignment of error.

Our review of a motion for summary judgment is de novo. Independent Fire Insurance Company v. Sunbeam Corporation, 99-2257 (La.2/29/00), 755 So.2d 226. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. McKoin v. State Farm Fire and Casualty Company, 36,429 (La.App.2d Cir.10/23/02), 830 So.2d 437. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material j ¡¡fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. Savage v. McConnell, 36,441(La.App.2d Cir.10/23/02), 830 So.2d 414. Despite the legislative mandate now favoring summary judgments, “factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor.” Willis v. Medders, 00-2507 (La.12/8/00), 775 So.2d 1049. When a motion for summary judgment is made and supported as provided by law, however, an adverse party may not rest on the mere allegations or denials of pleading of the party, and the response of that party, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue for trial. Savage, supra. Once a prima facie showing has been made that there is no genuine issue as to a material fact and that summary judgment should be granted, the burden shifts to the nonmover. Bertrand v. Air Logistics, Inc., 01-1655 (La.App. 3d Cir.6/19/02), 820 So.2d 1228. If the adverse party does not respond, summary judgment, if appropriate, shall be rendered against him.

In the case sub judice, Sunset’s motion for summary judgment was supported by affidavit and the supporting documents attached to the affidavit. The documents necessary to quiet the tax title were the appropriate deeds showing the transfer of the property from the Antonin-is | fito, eventually, Sunset. “A tax deed by a tax collector shall be prima facie evidence that a valid sale was made.” La. Const, art. 7, § 25. These documents were submitted to the trial judge and he reviewed them accordingly. Through these documents, Sunset showed that there was no genuine issue of material fact in this case; and, therefore, the burden then shifted to the Antoninis to establish that there were still genuine issues of material fact in dispute.

The Antoninis, as the nonmover of the motion for summary judgment, have failed to respond to the motion and to set forth specific facts showing that there is still a genuine issue of material fact in dispute for trial. Despite having an additional 45 days to file opposing documents with the trial judge, the Antoninis failed to file any such documents that would suggest that there is a genuine issue of material fact still in dispute. The Antoninis cannot rest on the mere allegations and denials in their pleadings.

The Antoninis’ allegations of fatal flaws in Sunset’s motion for summary judgment are inadequate. The contentions raised by the Antoninis concerning Sunset’s lack of proper ownership, corporate leadership and existence as a corporation are unfounded. In addition, the Antoninis’ claims that the consideration for the property paid by Sunset to Theus was improper is also unsubstantiated. The Antoninis set forth no statutory or jurisprudential basis for their assertions. They have provided neither to the trial court nor to this court any evidence on which their assertions are based. Accordingly, these assertions are without merit.

|70ne of the Antoninis’ assertions, however, warrants discussion. The proper description of property in a deed is of great importance. It is the long-standing public policy in this state to make certain and protect the title to immovable property. Harris v. Estate of Fuller, 532 So.2d 1367 (La.1988). The Antoninis contend that the shorter property description found on the Tax Collector’s Deed dated June 18, 1997, was not sufficient and that the three-year peremptive period to quiet tax title did not begin to run until September 28, 2000, when the Ouachita Parish Sheriffs office filed its “Act of Correction” to the deed. This Act of Correction listed the more detailed and longer description of the property. Since three years from September 28, 2000, had not elapsed on September 10, 2001, when Sunset filed its petition to quiet the tax title, the Antoninis argue that Sunset is not entitled to summary judgment as a matter of law.

The procedure to quiet tax title is found in La. R.S. 47:2228, which provides in pertinent part:

After the lapse of three years from the date of recording the tax deed in the conveyance records of the parish where such property is situated, the purchaser, his heirs or assigns, may institute suit by petition and citation as in ordinary actions against the former proprietor or proprietors of the property,. in which petition must appear a description of the property, mention of the time and place of the sale and name of officer who made same, reference to page of record book and date of recording tax deed, notice that petitioner is owner of the said property by virtue of said tax sale, and notice that the title will be confirmed unless a proceeding to annul is instituted within six months from date of service of the petition and citation.

The description of the property in the Tax Collector’s Deed, which conveyed the property from the Antoninis to Theus, contained what is commonly known as a “thumbnail” description of the property. Alsthumbnail description is an abbreviated description of the property used for the convenience of the tax assessor and tax collector. The use of an abbreviated description is sufficient to properly describe the property at issue in this case. In Seneca Resources Corporation v. Delacroix Corporation, 573 So.2d 1244 (La.App. 4th Cir.1991), writ not considered, 577 So.2d 10 (La.1991), the court held that a shortened description of property is still adequate to provide the necessary identification. The property in Seneca Resources Corporation was described only as, “[a]ll of Section 34, Township 15 South, Range 17 East.” Similarly, in the case sub judi-ce, we find that the abbreviated description of the property in the Tax Collector’s Deed, dated June 18, 1997, is also sufficient and that the property described in that deed is easily identified to the world.

Furthermore, it is incorrect to state that the deed conveying the property from Theus to Sunset contained a completely different description of the property than the abbreviated description in the Tax Collector’s Deed which conveyed the property from the Antoninis to Theus. There is no discrepancy between these two deeds. The abbreviated Tax Collector’s Deed and the later deed identify the exact same property. Since we find that the description of the property in the Tax Collector’s Deed dated June 18, 1997, was a sufficient description, the three-year peremptive period began to run from that date. As set forth by our supreme court, the public | npolicy of this state is to set at rest tax titles once and for all. Harris, supra, citing, King v. Moresi, 223 La. 54, 64 So.2d 841 (1953). The three-year peremp-tive period accrued exactly three years from the date of the recording of the tax deed in the conveyance records. The An-toninis have not carried their burden of proof and there is no genuine issue of material fact in this case still in dispute; therefore, this second assignment of error is without merit.

Summary Judgment and Supporting Documents

We now turn our attention to the Anton-inis’ first assignment of error.

The Antoninis argue that the trial judge erred both in allowing Sunset to file a supplement to its motion for summary judgment two days before the summary judgment hearing and in failing to require Sunset to have them “formally” served with the supplement. La. C.C.P. art. 966(B) provides:

The motion for summary judgment and supporting affidavits shall be served at least ten days before the time specified for the hearing. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 at least four days prior to the date of the hearing unless there are local rules of court to the contrary. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

The Antoninis assert that Sunset’s motion for summary judgment was fatally defective because the correct Tax Collector’s Deed was not attached to the summary judgment motion and Sunset cannot attempt to cure this defect by filing the correct Tax Collector’s Deed in a supplement to its Immotion only two days before the summary judgment hearing. We do not agree.

The Antoninis’ arguments concerning Sunset’s motion for summary judgment are misguided. La. C.C.P. art. 966(B) specifically sets forth that, “[a] motion for summary judgment and supporting affidavits shall be served at least ten days before time specified for the hearing.” Sunset properly served the Antoninis with the motion and supporting affidavit more than ten days before the summary judgment hearing. Only the motion itself and the supporting affidavits to the motion are required by La. C.C.P. art. 966(B) to be served ten days before the hearing. The Tax Collector’s Deed, which was filed with the trial court two days before the hearing, was not an affidavit. The Tax Collector’s Deed was simply a document supporting the contents of the affidavit, which had correctly described the deed. This supporting document simply replaced the incorrect Tax Collector’s Deed which had been originally attached to the affidavit. There is no requirement in La. C.C.P. art. 966(B) that every supporting document must also be filed and served on opposing counsel ten days before the summary judgment hearing.

Moreover, the Antoninis cannot in good faith assert that they did not understand which property was at issue in this case. The correct description of the property at issue was listed originally in the petition, in the motion for summary judgment and in several places in the other supporting documents attached to the affidavit in support of the motion for summary judgment, including in the affidavit itself and in the deed which conveyed the property l^from Theus to Sunset. The correct Tax Collector’s Deed, which conveyed the property from the Antoninis to Theus, was the only item missing from the supporting documents filed with the affidavit and attached to the motion for summary judgment. The Antoninis were fully aware of which property was at issue in this case and they were not prejudiced by the replacement of an incorrect supporting document with a correct supporting document.

Finally, the Antoninis’ reliance on the case of Lassere v. State, Department of Health and Hospitals, Office of Public Health, et al, 00-0306 (La.App. 1st Cir.3/28/01), 808 So.2d 513, is misplaced. The issue in Lassere was whether a motion for summary judgment was proper when the opposing counsel was not served with the notice of the summary judgment hear-' ing until the day before the hearing was scheduled, giving counsel no notice of the motion or its basis until the day before the hearing. The court held that the requirement of giving ten days notice is designed to give fair notice of the evidentiary and legal issues for the motion. Even without the correct Tax Collector’s Deed attached to the motion for summary judgment, the Antoninis knew precisely what the issues were in this case. More importantly, giving notice of the summary judgment hearing is a different issue than the issues that exist in the case sub judice. The Antonin-is had notice of the hearing and the basis for the issues involved, making Lassere distinguishable from the instant case. The Antoninis’ first assignment of error has no merit.

| ^CONCLUSION

For the foregoing reasons, the judgment of the trial court against Defendants, Alfred J. Antonini and Alva Jane Marquez Antonini, is affirmed. Costs of this appeal are assessed to Defendants, Alfred J. An-tonini and Alva Jane Marquez Antonini.

AFFIRMED.

      . The correct tax deed, however, was properly described in detail in the affidavit filed with the motion for summary judgment.

      . The trial judge was concerned that, because of the incarceration, Mr. Antonini and his counsel were having trouble contacting each other.

      . Since the description was accurate and sufficient to identify the property, it was unnecessary for the Ouachita Parish Sheriff's office to file an act of correction to the Tax Collector's Deed.


source: Caselaw Access Project

author: | t CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Steven W. SCOTT, Appellant.
    No. 36,763-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      J. Wilson Rambo, for Appellant.
    Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY and KOSTELKA, JJ.
   | t CARAWAY, J.

The defendant was convicted of second-degree battery and sentenced to, the maximum term of imprisonment, five years at hard labor. He argues that the trial court failed to comply with the requirements of La C.Cr.P. art. 894.1 and that the sentence was excessive. For the foregoing reasons, we affirm.

FACTS

The evidence adduced at trial shows that on January 1, 2000, the victim went with friends to Hamilton Lake, a park used by high school students as a place to congregate, drink and play music. The defendant, Steven W. Scott (“Scott”), was also present at Hamilton Lake. Scott and the victim did not know each other prior to this incident.

At the park, Scott confronted the victim and asked him if he wanted to fight. When the victim declined to fight, witnesses testified that Scott placed his hand in front of him as if he wanted to shake hands. Scott then combined that gesture with an insulting remark, apparently designed to start a fight. The victim kept both hands in his pockets during the entire confrontation and then turned away from Scott. Scott then struck the victim with his elbow and his fists, knocking him out and seriously injuring the victim’s face.

The victim’s facial injuries clearly indicate he was hit more than once. Scott gave a statement to the investigating police officer in which he admitted striking the victim five times; however, he subsequently denied this at trial. The pre-sen-tencing investigation report (“PSI”) indicates that pScott described the punches as “a left elbow, a right hook, and a right cross,” although the right cross did not connect because he was “too close” to the victim.

The victim had no memory of the events after the fight. He was taken by friends to the hospital, treated for the injuries to his mouth and face, and admitted overnight because he reported a period of unconsciousness. Medical bills and other expenses relating to this incident exceeded $15,000.00, some of which were covered by insurance.

Discussion

La. R.S. 14 § 34.1. Second degree battery

Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.

In this case, the defendant was charged with committing a battery that resulted in unconsciousness. The legal sufficiency of evidence to convict was not raised on appeal.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, we do not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. McKenzie, 36,580 (La.App.2d Cir.10/23/02), 830 So.2d 478; State v. Thompson, 25,583 (La.App.2d Cir.1/19/94), 631 So.2d 555; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (1988); State v. Madison, 535 So.2d 1024 (La.App. 2d Cir.1988).

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dallas, 36,397 (La.App.2d Cir.11/6/02), 830 So.2d 1113. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Strange, 28,466 (La.App.2d Cir.6/26/96), 677 So.2d 587; State v. Hudgins, supra. The court’s recitation of reasons for sentence indicate that the court considered the entire PSI report.

Whether a sentence is too severe depends on the circumstances of the case and the background of the defendant. A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is ^considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Dallas, supra; State v. Tuttle, 26,307 (La.App.2d Cir.9/21/94), 643 So.2d 304.

As a general rule, maximum or near maximum sentences are appropriate only in eases involving the most serious violation of the offense and the worst type of offender. State v. Gay, 36,357 (La.App.2d Cir.10/23/02), 830 So.2d 356; State v. Walker, 573 So.2d 631 (La.App. 2d Cir. 1991); State v. Madison, supra. A trial court is not required to render a suspended sentence or probation on a first felony offense. The judge may consider whatever factors and evidence he deems important to a determination of the best interest of the public and the defendant. State v. Strange, supra.

In State v. White, 35,235 (La.App.2d Cir.10/31/01), 799 So.2d 1165, the first-time felon pled guilty to simple robbery, conspiracy to commit simple robbery and second degree battery. White received a sentence of 5 years imprisonment for second-degree battery, along with 7 years imprisonment for simple robbery and 3.5 years imprisonment for conspiracy to commit simple robbery (all to run consecutively). The robbery victim in White, similar to the present victim, sustained serious facial injuries from the beating.

We find that the trial court adequately considered and articulated its reasons for imposing a five-year hard labor sentence on this defendant. The court considered Scott’s family and educational history, including a history Lof discipline problems ultimately resulting in expulsion from an alternative school in the Ouachita Parish School System. The court referred to Scott’s subsequent enrollment in West Monroe High School, from which he dropped out before completing high school. The court also referred to a history of employment, including Scott’s employment at the time of sentencing.

The court further referred to Scott’s experimentation with marijuana, and his statements that he does not presently use drugs or alcohol. The court noted Scott’s history of juvenile delinquency and an adjudication for shoplifting, for which he was placed on probation. Most importantly, the trial court adverted to an offense, which occurred eight months after the instant offense, in which Scott got into a verbal altercation with others at West Monroe’s Tutti Frutti Beach area. Scott then followed those persons to their residence where he invaded their home and committed simple battery (apparently upon two persons).

In addition, the trial court adverted to the aggravating factors present (deliberate cruelty involved in a “blindside” attack on another; use of violence; significant permanent injury [tooth loss and facial fractures]; economic loss). In referring to the defendant’s training as a fighter, his desire to fight, and to his unrepentant attitude, the trial court stated that the conduct at issue was likely to occur again and that the defendant was in need of correctional treatment. Despite Scott’s testimony that he tried to apologize and express remorse in an e-mail to a female friend of the victim, even a dispassionate reading of the cold record shows that the defendant | fiwas not remorseful about the incident, but instead was arguably proud of his fighting skills.

We find that the trial court’s articulation was more than adequate.

The sentence imposed is harsh. However, the record before this court shows that the trial court had before it for sentencing an unrepentant offender, who committed a similar offense after the incident in question. He has a poor educational history, a minimal work history, and a clear history of engaging in violence. Without any significant provocation, he sought out the victim, tried to bait him into a fight, and when unsuccessful, blindsided and seriously injured him. He caused the victim and his family, and their insurer, to sustain economic loss. The trial court determined that this defendant’s actions warranted a severe response, and it does not appear that the trial court has abused its great discretion in levying the sentence it imposed.

Conclusion

For the reasons stated herein, we find that the trial court properly complied with the requirements of La.C.Cr.P. art. 894.1 and that the sentence is not excessive. Therefore, the sentence of the defendant, Steven W. Scott, is affirmed.

AFFIRMED.

      . We note that the defendant, although sentenced to serve the maximum amount of time in prison, did not receive the maximum sentence in this case because he was not fined $2,000.


author: It CARAWAY, J.

text:
    April Yvette GRAY, Plaintiff-Appellant, v. INVESTMENT CARS UNLIMITED, INC., and/or Southeast Foods, Inc., d/b/a County Market, Defendant-Appellee.
    No. 36,691-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Bruscato, Tramontana & Wolleson by P. Scott Wolleson, for Appellant.
    Cook, Yancey, King & Galloway by Lee H. Ayres, Robert Kennedy, Jr., Shreveport, for Appellee.
    Before CARAWAY, PEATROSS and DREW, JJ.
   It CARAWAY, J.

In this slip and fall case, the trial court determined that there was insufficient evidence for the so-called “temporal element” establishing any length of time that the spill had remained on the merchant’s floor. Summary judgment for the merchant was granted. From our review of the evidence, we find a material issue of fact concerning the absence of other customers in the store for an extended time during the early morning hours prior to the accident. Accordingly, we reverse the trial court’s grant of summary judgment.

Facts

April Yvette Gray (“Gray”) and her son visited defendant, Southeast Foods, Inc. d/b/a County Market’s (“County Market”) store in Monroe to grocery shop on January 25, 1995. After Gray picked up her son from work around midnight, they drove to the store together. The accident occurred at approximately 1:45 a.m., when Gray allegedly slipped on stray wet grapes on the floor of the store’s produce section and was injured. Subsequently, she filed suit to recover damages resulting from the accident.

County Market ultimately moved for summary judgment. Evidence in the form of supporting affidavits and depositions were offered to show that the store’s employees were neither aware that the grapes were on the floor, nor did they know how the grapes got there or how long they had been there. Gray’s written opposition is not of record, but her counsel appeared at the hearing and argued in opposition thereto.

Eugene Lewis (“Lewis”), a grocery stocker working that night, | ¡¡testified in his deposition that he talked to Gray after she fell. It so happened that the two knew each other because a friend of Gray’s was a former girlfriend of Lewis. Lewis testified that “[Gray] came around and told me she had fell, and I told her to show me where she had fell, and she took me around there and showed me.” Lewis further testified that there was “barely anybody in the store” that night. When Lewis was questioned in deposition concerning the affidavit he had given to Gray’s counsel alleging that “no customers had been in the store for about one hour” that night, he stated, “I would say that’s true.” Although admittedly, Lewis would not be able to constantly see whether any other customers were in the store due to the aisle configuration, he insinuated that he could often hear whether or not other customers were in the store, even if he couldn’t see them. He stated that while there may have been other customers in the store, “they’d have had to been mighty quiet.” Lewis’ Southeast Foods affidavit also stated that he was able to see Gray when she entered the store that night, before she fell.

The trial court’s written reasons for judgment weighed Lewis’ Southeast Foods affidavit, and characterized it as unhelpful in establishing Gray’s claim that the store would have had constructive notice of the grapes on the floor. Also, considering Lewis’ other affidavit, the trial court noted that Lewis stated that the produce crew had already quit working that evening, and that at the time Gray fell, the floor maintenance crew had not | ayet arrived to begin working on the store floors. The affidavit also stated that the store’s aisle/floor inspection log showed the last aisle check to have been performed at 10:00 p.m., 3/£ to 4 hours before Gray fell. The evidence presented by Gray’s son, Melvin, consisted of deposition testimony that he saw the two grapes on the floor in a small puddle of water after his mother slipped on one of the two. One grape was smashed, the other grape was still plump. Lewis testified that the grapes were “brownish” in color. Gray’s deposition testimony indicated that she did not see anyone else in the store that night, and that she was walking through the produce section on the way to look at greeting cards when she slipped.

The trial court weighed Southeast Foods’ argument that the green grape’s discoloration was ineffective to show that the grapes had been on the floor for an unreasonable length of time. The trial court concluded that testimony concerning the color of the grapes, and whether their color had changed from green to brown, was insufficient to satisfy the temporal element required for Gray to prevail on her claim against the store. Therefore, the trial court granted summary judgment for Southeast Foods. It is from this judgment that Gray appeals.

Summary Judgment

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); McKoin v. State Farm Fire and Cas. Co., 36,429 (La.App.2d Cir.10/23/02), 830 So.2d 437. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir.1/21/98), 707 So.2d 459. When a motion is made and supported as required by La. C.C.P. art. 966, the adverse party may not rest on the mere allegations or denials of his pleading, but his response must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967; McKoin, supra. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir.5/10/00), 760 So.2d 587.

Under the provisions of La. C.C.P. art. 966(C)(2), when a party moving for summary judgment will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but instead to point out the absence of factual support for one or more elements essential to such claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Despite the legislative mandate that summary judgments are now [^favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent’s favor. Row v. Pierremont Plaza, L.L.C., 35,796 (La.App.2d Cir.4/3/02), 814 So.2d 124, 128.

Discussion

On the date of the accident, the pertinent provisions of the slip and fall statute applicable to merchants, La. R.S. 9:2800.6 (the “Statute”), stated:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, and in addition to all other elements of his cause of action, that:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and
(3) The merchant faded to exercise reasonable care.
C. Definitions:
(1) “Constructive Notice” means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

In the absence of proof that a hazardous spill on the merchant’s floor was caused by the merchant and not a customer, the duty to keep the floor in |fia reasonably safe condition must be shown to have been breached by some proof of an inadequate inspection procedure in order for the plaintiff to prevail. See, Holden v. Louisiana State Univ. Medical Ctr. in Shreveport, 29,268 (La.App.2d Cir.2/28/97), 690 So.2d 958, writ denied, 97-0797 (La.5/1/97), 693 So.2d 730. In this regard, “constructive notice” under the Statute requires proof that the unsafe condition existed for such a period of time that it would have been discovered upon proper floor inspection by the merchant.

In White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081, the Supreme Court held that the constructive notice provision contains the “temporal element,” requiring the plaintiff to make a positive showing of the existence of a hazardous condition prior to the fall. Whether the condition exists for a sufficient length of time for a merchant to discover the condition is necessarily a question of fact, but a claimant who simply shows that the condition exists, without the additional showing that it existed for some time before the fall, does not carry the burden of proving constructive notice required by the statute. White, 699 So.2d at 1084. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. This is not an impossible burden. Id. at 1084, 1085. In Crawford v. Ryan’s Family Steak Houses, Inc., 31,911 (La.App.2d Cir.5/5/99), 741 So.2d 96, this court concluded that the applicable rules of evidence allow for proof of this statutory temporal element by both direct and circumstantial evidence.

|7The time consideration for the “temporal element” considers the length of time that the spill remained on the floor and the time when the merchant last inspected the floor. In this case, the evidence showed that County Market last inspected the floor 3)6 to 4 hours before the accident. Yet, the trial court determined that Gray had failed to produce factual support sufficient to establish proof of when the spill occurred. The trial court stated:

What this all comes down to is whether the testimony about the color of the grapes on the floor is sufficient for the Court to conclude that the grapes were on the floor long enough to have changed colors from green to “brownish,” and therefore long enough to meet the temporal element required by law.

The court then rejected the suggestion that the facts concerning the grapes’ color were material for the purpose of determining the temporal element.

We are inclined to agree with the trial court that the evidence presented by both sides concerning the grape coloration and condition does not establish with any degree of certainty the length of time the grapes had been on the floor. As County Market demonstrated with its evidence, discoloration or spoiled grapes may exist in any bunch of grapes sold. Therefore, any customer’s handling of the grapes could have dislodged “brownish” or spoiled grapes. The merchant does not insure the patron’s safety for every accident. Jefferson v. Costanza, 628 So.2d 1158 (La.App. 2d Cir.1993). The presence of other members of the public passing through the merchant’s store raises a significant possibility that a spill was caused by the negligence of a third person. Holden, supra.

Because both sides focused on the grape coloration dispute, another | ¿issue of fact appears to have been discounted. From our review of the testimony of Lewis and Gray, there is a sufficient issue of fact concerning the absence of other customers in the store for a lengthy period of time prior to the accident. Without the presence of other customers in the store before the accident, it may be inferred that either (i) the spill was caused by a customer at a much earlier time and had remained undetected for an unreasonable amount of time, or (ii) a store employee had caused the grapes to spill during the extended period of time when customers were not there.

A fair reading of Lewis’s testimony from his affidavits and deposition reveals his belief that no other customers were in the store for an extended period of time. Other customers would presumably have been randomly traversing the store aisles while Lewis was also moving around performing his stocking duties. He stated that his work as a stocker required him to work on all aisles in the store. While working, he saw Gray’s entry into the store. Yet he remembered no other customer’s entry for an extended time before Gray’s arrival. Lewis’s view that no customers had been in the store is corroborated somewhat by Gray’s testimony that the store had no other customers. While Lewis’s testimony also shows that he cannot state with certainty that no other customers had shopped in the hour before the accident, one may draw that inference of fact from his testimony and the circumstances.

We recognize that the lack of customer traffic is also a favorable factor for the merchant when gauging the reasonableness of the merchant’s inspection procedure. Nevertheless, another function of the inspection |9process is to address spills which may have been occasioned by the store’s own employees’ acts, especially during a period of restocking. Additionally, the inspection procedure for certain areas of the store may require more care. In Saucier v. Kugler, Inc., 628 So.2d 1309 (La.App. 3d Cir.1993), the court found that the merchant had knowledge of the propensity of fruit to roll off the shelf in the produce area. Saucier was cited with approval in White, supra, note 4. In this case, testimony concerning the packaging of grapes and problems with loose grapes may indicate an issue similar to the one in Saucier. These issues are factors in this case which the trier-of-fact must weigh and which we may not weigh in the context of this summary judgment.

Conclusion

In summary, we find that a trier-of-fact could accept the testimony indicating that County Market had no other customers for an extended period of time before Gray’s accident. Gray presented sufficient evidence to create that material fact dispute. The disputed fact is material because if true, it may be determined that the spilled wet grapes had remained on the merchant’s floor “for such a period of time that it would have been discovered if the merchant had exercised reasonable care.” The summary judgment must therefore be reversed. Costs of this appeal are assessed to appellee.

REVERSED.

      . Southeast Food's counsel obtained a somewhat countervailing affidavit of Eugene Lewis to support its motion for summary judgment; Southeast’s is the only one of Lewis' two affidavits contained in the record and is referred to as “Southeast Foods affidavit.”

      . The statute was subsequently amended effective May 1, 1996, however, the amendment was not retroactive; see White v. Wal-Mart Stores, Inc., supra.


author: hHARRISON, Judge Pro Tempore.

text:
    James DAVIS, Jr., Plaintiff-Appellant, v. T.A. MILLER, INC., Defendant-Appellee.
    No. 36,725-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.
    Robert A. Jahnke, Shreveport, for Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell by: Robert A. Dunkelman, Shreveport, for Appellee.
    Before WILLIAMS, DREW and HARRISON (Pro Tempore), JJ.
   hHARRISON, Judge Pro Tempore.

The claimant, James Davis Jr., appeals a judgment rejecting his claim for workers’ compensation benefits. He contends the Workers’ Compensation Judge (“WCJ”) committed manifest error in failing to find that he proved a work-related injury. For the reasons expressed, we affirm.

Factual background

Davis, a construction worker, testified that shortly before Christmas 1998, he was working for T.A. Miller Inc., a construction company, in Natchitoches, Louisiana. He testified that he injured himself while assisting a jackhammer operator in a manhole. He described his work as holding one end of a nylon rope; the other end was supporting the 90-pound jackhammer being used by the operator. He said that the rope “had got to cutting my hand” and “my hands hurting, I was swapping hands.” He also had his head against a wall for part of the time he was holding the rope. He said that when he was finished with this job, his hands were numb and his left arm hurt, but his neck did not. Mr. G.P. Prudhomme, the job superintendent for Miller at that site, testified that Davis did not make any complaints of pain as a result of working in the manhole or after climbing on any machinery.

Davis testified that prior to this incident, he never injured or had any pain in his left arm; however, his arm “never quit hurting” afterwards. On December 31, 1998, he returned to work, operating a bulldozer. He testified that once when he grabbed a handle to get up onto the bulldozer, he felt “like an electrical storm went off’ in his left arm. He testified that he has been unable to work since that day because of pain and weakness in his left | ?arm. In fact, he testified that after that day he “laid down” because he was “hurting so bad. The pain had got so bad I couldn’t get out and do anything.”

Despite this severe pain, Davis did not see a doctor until February 3, 1999 when he went to the emergency room at LSU Medical Center in Shreveport. He explained this delay by stating he was unable to get an appointment until January 28, and that the hospital later changed it to the middle of February. The hospital’s records from February 3 reflect:

Context: Patient was resting, occurred during exertion, occurred while at work. Pt states he nearly fell off a piece of machinery at work but caught hisself [sic] with his left arm. This is the only significant trauma he remembers. The date of this occurrence was last week.

Davis testified that he told the doctors he injured himself while jackhammering and, as for the bulldozer incident, he testified he caught himself with his right arm. However, the first reference to the jackhammer in Davis’s medical records does not occur until nearly a year later, on January 12, 2000.

Davis testified that he told Mr. Miller about his injury on February 18, 1999, over the phone from the doctor’s office, but Mr. Miller did not respond to this information. Davis said that he called the employer again in June and got no response. Finally, in November, he phoned and someone told him to leave information about his claim on the voice mail of a Mr. James Howell. Davis said he did so but never got any reply.

To the contrary, Ms. Larocca, Mr. Miller’s receptionist during the time in question, testified that she never received any phone calls from |3Pavis reporting an injury (she admitted that other office workers might have taken the call without her knowledge). Mr. Howell testified that he did not remember receiving any messages from Davis. Mr. Miller, the owner of the company, said that neither he nor any of his employees knew about Mr. Davis’s alleged injury until they were served with the petition.

Miller paid no medical bills or indemnity benefits. Davis continued medical treatment in 1999, however, appearing at LSU Medical Center on February 19 and March 8 with complaints of pain in his left arm. A nerve conduction test on April 29 noted this impression: “The patient appears to have compression of the ulnar nerve probably in the region of the elbow.” LSU records from June 2 show notations of “no complaint today” and “numbness in [left] arm resolved.”

Davis returned to LSU in January 2000 with complaints of weakness and numbness in his left hand, and a February 2000 report objectively confirmed some diminished sensation in the left hand. An EMG report from April 12, 2000 found, inter alia:

The only abnormality seen on today’s study was some slowing in the sensory median and the mid palm to wrist segment which would be compatible with some degree of Carpal Tunnel Syndrome. * * *
I’d have to say that something has improved in the ulnar distribution. * * * Also it was questionable to me whether the weakness and the grip was from lack of effort.

Another nerve conduction study performed in September 2000 found “no evidence of slowing across the elbow in either ulnar nerve.” The impression from this study included the observation that the findings of the 14three studies are difficult to interpret and “all of the electrodiagnostic tests are difficult to correlate with this man’s actual symptoms and physical findings.”

Subsequently, Davis returned to LSU where Dr. Karl Bilderback diagnosed a pinched nerve in Davis’s spine. On April 17, 2001, the doctor performed an anterior cervical diskectomy and fusion at Davis’s C5-6. After this operation Davis reported that his left arm pain was improved by 50%. The surgical notes from this procedure reported a history of a jackhammer incident on December 15, 1998. Dr. Bild-erback neither testified nor gave a deposition, partly because he moved to Oklahoma during the course of these proceedings. Dr. Cambize Shahrdar, another orthopedic surgeon at LSU, testified that the operation was necessary to relieve the pinched nerves, but he deferred to Dr. Bilderback on the issue of whether Davis’s problems were caused by the circumstances of the jackhammer incident.

On December 20, 1999, Davis filed the instant disputed claim for compensation, alleging that the accident occurred on December 80, 1998, while operating a jackhammer in a manhole. Davis initially obtained a default judgment, but the WCJ annulled this on November 2, 2002.

The matter proceeded to trial on January 24, 2002. The witnesses testified as outlined above. Mrs. Leon, Miller’s bookkeeper, testified that Davis did not work on December 30, 1998, although according to company records he did work on December 31. Davis’s brother-in-law, Earnest Gay, testified that Davis was usually in pain and had not worked since he started | Rcomplaining of pain. Davis was only a part-time employee of Miller’s during 1998; his W-2 form for that year shows he earned only $3,280 from Miller. Davis earned $10 an hour as a construction worker and had several different employers that year.

The WCJ took the matter under advisement. By judgment dated April 15, 2002, it rendered judgment finding that Davis failed to prove by a preponderance of the evidence that he sustained an accident while in the course of his employment with Miller. The court therefore rejected all his claims with prejudice.

Discussion

By one assignment of error, Davis urges the WCJ erred in failing to find that he proved a work-related accident. He contends that he did not have to establish the exact cause of disability, but merely to demonstrate by a preponderance of proof that a work-related accident had a causal connection with his disability. Allen v. Misco Paper, 27,146 (La.App. 2 Cir. 8/23/95), 660 So.2d 175.

This court recently summarized the law concerning the standard of proof in workers’ compensation cases in Pearce v. Medallion Construction, 36,351 (La.App. 2 Cir. 11/6/02), 830 So.2d 576:

An injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. La. R.S. 23:1031. The injured employee bears the initial burden of establishing the causal connection between the disability and the employment accident by a reasonable preponderance of the evidence. The claimant is not required to establish the exact cause of the disability, but the claimant must demonstrate by a preponderance of proof that the accident had a causal connection with the disability. Thompson v. Dillard’s Dept. Store, 32,974 (La.App. 2 Cir. 5/10/00), 759 So.2d 1074. Proof by a preponderance of the evidence exists |fiwhen the evidence, taken as a whole, shows the facts sought to be proved are more probable than not. Harris v. Coushatta Indus. Sand Inc., 31,977 (La.App. 2 Cir. 6/16/99), 741 So.2d 143; Weeks v. Buffington Corp., 28,507 (La.App. 2 Cir. 8/21/96), 679 So.2d 946.
While the worker’s testimony alone may be sufficient to discharge that burden, it will be inadequate where (1) other evidence discredits or casts serious doubt upon the worker’s version of the incident; or (2) the worker’s testimony is not corroborated by the circumstances following the alleged incident. Clay v. Delphi Interior & Lighting Systems, 34,242 (La.App. 2 Cir. 12/22/00), 775 So.2d 1207.
Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Thompson, supra. Factual findings in workers’ compensation cases are subject to the manifest error rule. Smith v. Louisiana Dept. of Corr., 93-1305 (La.2/28/94), 633 So.2d 129. Under the manifest error rule, the reviewing court does not decide whether factual findings are right or wrong, but whether they are reasonable. Stobart v. State, 617 So.2d 880 (La.1993); Graham v. Georgia[-]Pacific Corp., 26,165 (La.App. 2 Cir. 9/23/94), 643 So.2d 352.

After careful review of the record, we perceive no manifest error. The WCJ was entitled to find that other evidence east significant doubt on Davis’s account of the incident. Despite his claim of immediate, debilitating pain, he waited more than one month to seek medical attention. When he did, he complained about nearly falling from a piece of heavy equipment a week earlier, or nearly a month after the alleged jackhammer accident. His medical records contain no mention of a jackhammer incident until January 2000, a month after he filed his Form 1008 and some 11 months after he first saw a doctor. He admittedly did not report the accident to his employer at the time it occurred, and no one from the employer’s office could corroborate that he ever reported it. In sum, none of the events after the alleged incident supported Davis’s version of his injury. |7 Furthermore, without the testimony of Dr. Bilderback, there is no medical evidence to show how the events alleged by Davis could have caused his symptoms. The WCJ was not plainly wrong in rejecting Davis’s testimony about the incident.

Conclusion

For the reasons expressed, the judgment is affirmed at the cost of James Davis Jr. This opinion is designated for publication pursuant to La. R.S. 23.T310.5 F.

AFFIRMED.


author: |! HARRISON, Judge (Pro Tempore).

text:
    Cynthia ADAMS, Plaintiff-Appellee, v. Alton E. CHENAULT, Jr., Southern Made Trucking, Employees Mutual Casualty Company, Jessie D. Laprarie, and Trinity Universal Insurance Company of Kansas, Inc., Defendant-Appellant.
    No. 36,729-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      Lunn, Irion, Salley, Carlisle & Gardner by James A. Mijalis, Shreveport, for De-fendanh-Appellant.
    John T. Bennett, Candyce Catherine Gagnard, New Orleans, for Plaintiff-Ap-pellee.
    Before BROWN, STEWART and HARRISON (Pro Tempore), JJ.
   |! HARRISON, Judge (Pro Tempore).

The defendants, Alton E. Chenault Jr., Southern Made Trucking Inc. and Employers Mutual Casualty Co. (collectively “Employers Mutual”), appeal the quantum of general damages and future medical expenses awarded to the plaintiff, Cynthia Adams, as a result of an automobile accident. For the reasons expressed, we amend and affirm.

Factual background

On June 18, 1999, Ms. Adams was riding in the front passenger seat of her father’s 1991 Lincoln Continental on Air Base Road, just north of Alexandria, Louisiana, en route to Air Base Hospital for pre-tests for a hysterectomy. Her father, Jessie LaPrairie, was driving, and her daughter, Jessica, was riding in the back seat. As they passed 1-49, an 18-wheeler driven by Alton Chenault Jr. rolled down the exit ramp and “lost its brakes.” It struck the passenger side of the Continental, knocking it about 150 feet. Ms. Adams was wearing her seatbelt and did not recall if her head struck anything in the collision. Her daughter, in the back seat, was very agitated but sustained no serious injuries; her father was not injured at all. At the scene, Ms. Adams indicated she was not injured; she called her husband to drive her home to Vick, Louisiana, north of Marksville. However, she testified that immediately after the accident, she got a headache, and by the next morning it was “really terrible.”

Medical evidence

The morning after the accident, Ms. Adams went to the emergency room at Avoyelles General Hospital. She testified that she reported the |2headache and a burning sensation in her neck. However, hospital records reflect only small abrasions over her right shoulder, and pain in her neck and back. The doctor on duty diagnosed neck strain and gave her Motrin.

One week later, on June 23, Ms. Adams went to Dr. Bryan C. McCann, a family practice physician in Marksville. She has been seeing him regularly ever since for migraine headaches and neck pain. In numerous examinations, Dr. McCann could find no objective evidence of injury. Despite the headaches, Ms. Adams proceeded with the previously planned hysterectomy about one month after the accident; Dr. McCann has given her hormone replacement therapy since then. In December 1999, he ordered an MRI which was negative. He testified that migraines often are the result of stress, but they can also result from “tightness and tenseness” in the neck. He ascribed her headaches to the accident.

Dr. McCann prescribed Vicodin, which contains the synthetic narcotic hydroco-done, 15 or 20 pills every two weeks for nearly 256 years. He did not think this was enough to cause an addiction. He was unaware that she was getting hydrocodone from any other doctor, and testified that had he known this he would have discontinued it immediately. Unable to trace the source of her pain, Dr. McCann referred her to an orthopedist, Dr. Cobb, and a neurologist, Dr. Snatic, both of whom practice in Lafayette.

Ms. Adams began seeing Dr. Cobb, the orthopedist, in January 2000, reporting neck pain, daily headaches, nausea, and a kind of burning, sticking 13sensation in her neck. She described the pain in her neck as a “9,” but on examination she had a full range of motion. He diagnosed post traumatic cervical strain with migraines, but admitted it was unusual for a strain to persist over six months. He testified that in February and May 2000, she came to him asking for Lortab, another form of hydrocodone. He complied, but advised her that she would have to switch to over-the-counter pain medicines. Pharmacy records indicate that he gave her large amounts of hydrocodone from February through June 2000, and again from November 2001 through January 2002. He further testified he was unaware that she was receiving narcotics from Dr. McCann at these times.

Dr. Cobb suggested a second MRI and a discogram, which were performed in October 2001 and January 2002, respectively. Both were normal. He discharged her in January 2002, saying he had no more treatment to offer her.

Ms. Adams began seeing Dr. Snatic, the neurologist, in February 2001. Like Dr. Cobb, he never found any neurological deficits in her neck or back. He suggested an EEG and a blink reflex test, both of which were normal. She told Dr. Snatic she was taking about seven hydrocodone pills a week. He considered this a large dosage which created a chance for chronic headaches (he referred to it as “medication overuse and rebound”). He instructed her to quit taking so much hydrocodone, and prescribed physical therapy. He gave her various anti-depressants and tranquilizers, and periodic injections of Cortisone. Based on her history, he accepted that the accident was causing her migraines.

|4Ms. Adams testified that at the time of trial in April 2002, she was still getting two or three migraines a month, each lasting two or three days. She also complained of continued pain in her neck. None of this predated the accident. She also denied that she ever went to any doctor just because she wanted more drugs. She admitted taking hydrocodone from Drs. McCann and Cobb simultaneously, filling prescriptions for about 400 pills between February and April 2000. She explained that she saved them for when she needed them, and only took about 15 a week. She added that when on Dr. Snatic’s advice she quit taking hydrocodone for about two weeks, it gave her no relief from headaches.

Procedural history

Ms. Adams filed suit against the driver of the rig, Chenault, his employer, Southern Made Trucking, and their insurer, Employers Mutual Casualty Co. Her 12-year-old daughter, Jessica, a passenger in the back seat of the Continental, joined the petition as a plaintiff. Prior to trial, Employers Mutual conceded liability. The matter went to a bench trial on quantum only in April 2002. The only live witnesses were Ms. Adams and her husband, David Adams. Drs. McCann, Cobb and Snatic testified by deposition, and various medical, hospital and pharmacy reports were offered in evidence. Her medical bills, which included treatment, therapy, drugs and diagnostic tests, totaled $32,291.75.

The District Court issued no reasons for judgment. By judgment of | sMay 2002, it awarded Jessica special damages of $356.00 and general damages of $1,500.00; these awards have not been appealed. The court then cited Smith v. Lee, 00-1079 (La.App. 5 Cir. 4/11/01), 783 So.2d 642, writ denied, 01-1731 (La.9/28/01), 798 So.2d 116, and awarded Ms. Adams general damages of $100,000. He further awarded special damages of $32,291,75, and future medical expenses of $10,000.

Employers Mutual has appealed, contesting by two assignments of error the award of general damages and future medical expenses.

Discussion: General Damages

By its first assignment, Employers Mutual contests the general damages of $100,000 as excessive. It first cites the discrepancy between the emergency room report and her later complaints to the various doctors; as a result, there is insufficient proof of causation. It next argues that despite numerous medical exams and specialized tests, no one has ever found any objective evidence to support her claim of chronic migraines. It notes the huge amount of hydrocodone she obtained from Drs. McCann and Cobb simultaneously, and contends that her course of treatment was in fact “drug seeking activity.” It also submits that according to Dr. McCann, the hysterectomy and hormone replacement therapy could be contributing to her headaches. Employers Mutual concludes that if Ms. Adams has suffered headaches as a result of the accident, she made them worse by her own conduct. It suggests a maximum affirmable award of $10,000.

Ms. Adams contends that because she had no headaches or neck pain prior to the accident, she is entitled to the presumption of causation stated in Housley v. Cerise, 579 So.2d 973 (La.1991). Noting that every physician has accepted as true her complaints of debilitating migraines, she submits that the judgment is not an abuse of the District Court’s wide discretion. Hae Woo Youn v. Maritime Overseas Corp., 92-3017 (La.9/3/93), 623 So.2d 1257, cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Because Employers Mutual conceded liability, the only issue is quantum. General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms. Keeth v. State, 24,720 (La.App. 2 Cir. 5/5/03), 618 So.2d 1154, Writ dism., 93-1569 (La.6/18/93), 619 So.2d 563. Much discretion is accorded to the trier of fact in fixing general damage awards. La. C.C. art. 2324.1. This discretion is so vast that an appellate court should rarely disturb an award of general damages. Hae Woo Youn v. Maritime Overseas Corp., supra. Nevertheless, if an award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances, the appellate court should increase or decrease the award. Duncan v. Kansas City Southern Ry. Co., 00-0066 (La.10/30/00), 773 So.2d 670.

An injured party has a duty to take reasonable steps to mitigate his damages. Aisole v. Dean, 574 So.2d 1248 (La.1991), and citations therein. The use of prescribed medications may constitute a failure to mitigate under | circumstances of bad faith, fraud, or failure to take the medicine as directed. Taylor v. Tulane Med. Center, 98-1968 (La.App. 4 Cir. 11/24/99), 751 So.2d 949, rehearing granted.

Ms. Adams was involved in a truck-car collision which, though significant, did not seriously injure any other occupants of the car. She did not complain of headaches at the scene or the next day at Avoyelles General, but a week later she began to report that debilitating headaches had occurred immediately and persisted. Apart from neck and back strain, no doctor could find any organic problem or physical injury. All doctors said that neck strain could cause migraine headaches, but none could explain the persistence of a strain for over six months after the accident. An array of sophisticated diagnostic tests yielded absolutely nothing abnormal.

Although she denied it, this record shows a pattern of abuse of prescription narcotics. Dr. McCann, her treating physician, testified that a dosage of hydro-codone tablets a day would not create an addiction. The pharmacy records, however, show that she received dosages greatly in excess of that amount, particularly in the Spring of 2000 and Autumn of 2001. This was despite the direct advice of Dr. Snatic to get off this drug, and his expert opinion that continuing it in such quantities would make her headaches worse. Notably, she misrepresented to Dr. Snatic how much hydrocodone she was taking, and withheld from Drs. Cobb and McCann the fact that she was getting this drug from both of them simultaneously. Both doctors said they would have halted the medication immediately had they known of these facts.

|sEven with great deference to the District Court’s findings, this evidence compels the conclusion that Ms. Adams has failed to mitigate her damage, and in fact aggravated it, by disregarding one doctor’s orders to curb her narcotics intake and by withholding information from the others to get even more hydrocodone. As there is no other explanation for her prolonged condition, we must accept Dr. Snatic’s opinion that using this amount of hydroco-done has contributed to her chronic headaches. For these reasons, the award of general damages is clearly above the amount that a reasonable trier of fact could assess for the effects of this accident upon Ms. Adams.

The jurisprudence is replete with cases of plaintiffs who sustained, as a result of trauma, serious and debilitating headaches, often continuing until trial. See, e.g., Fontenot v. Omni Ins. Group, 99-504 (La.App. 3 Cir. 10/13/99), 745 So.2d 716; Veazey v. State Farm Mutual Auto Ins. Co., 587 So.2d 5 (La.App. 3 Cir.1991); Smith v. Lee, supra; Whited v. Home Depot USA Inc., 27,938 (La.App. 2 Cir. 8/3/96), 712 So.2d 97, writ denied, 96-2340 (La.11/22/96), 683 So.2d 282; Fitch v. Vintage Petr. Inc., 94-346 (La.App. 3 Cir. 11/2/94), 652 So.2d 998; Lowery v. Savana, 33,384 (La.App. 2 Cir. 5/10/00), 759 So.2d 1020; Sutton v. Lambert, 94-2301 (La.App. 1 Cir. 6/23/95), 657 So.2d 697, writ denied, 95-1859 (La.11/3/95), 661 So.2d 1384. For injuries similar to Ms. Adams’s, these cases establish a range of damages from minimal to $45,000. On this record, we find the maximum 1¡¡affirmable amount of general damages for Ms. Adams’s injuries is $45,000. The judgment will be amended accordingly.

Future medical expenses

By its second assignment, Employers Mutual contests the future medical award of $10,000 as excessive. It asserts that Dr. Cobb has released Ms. Adams with no plan for future treatment; Dr. Snatic testified that four more office visits at $105.00 each should be sufficient to manage her problems; and Dr. McCann projected roughly one more year of monthly office visits at $100.00 each. It contends that the highest affirmable amount would be $1,600.00.

Ms. Adams cites her own testimony that she intended to see Dr. McCann every two weeks and Dr. Snatic at least one more time. She contends that she will need “continuous treatment by Dr. McCann, injections into the head, brain MRIs and * * * medication [as] she has been taking in the past and will likely have to take in the future.” She concludes that because her prior medical expenses exceeded $32,000, the award of $10,000 is not an abuse of discretion.

Future medical expenses must be established with some degree of certainty, and cannot be predicated on mere speculation. Quinn v. Wal-Mart Stores Inc., 34,280 (La.App. 2 Cir. 12/6/00), 774 So.2d 1093, writ denied, 01-0026 (La.3/9/01), 786 So.2d 735. Awards for future medical expenses that may or may not be incurred require medical testimony that they are indicated and projecting their probable costs. Duncan v. Kansas City Southern, supra. The plaintiff must show that, more probably than not, | inthese expenses will be incurred. Morrison v. Kappa Alpha PSI Fraternity, 31,805 (La.App. 2 Cir. 5/7/99), 738 So.2d 1105, writs denied, 99-1668, 1607, 1622 (La.9/24/99), 747 So.2d 1120, 749 So.2d 634, 635.

Dr. McCann stated that in the last few months before his deposition in October 2001, Ms. Adams had shown slight improvement. If this trend continued, he projected only one more year of his treatment, including injections of non-narcotic drugs. Earlier, he stated that she would have “another few years of discomfort for sure.” According to his records, office visits have been roughly every other week at $75.00 per visit, with injections totaling $50.00 every other visit. If her progress falters, he mentioned pain management as an alternative; however, he did not estimate this cost, and he stated that most patients do not benefit from it. Dr. Snatic would project only four more office visits at $105.00 per visit.

We are not persuaded that Ms. Adams’s prior medical expenses of over $32,000 are relevant to projecting her future medicals. Of the medical expenses incurred so far, the bulk has gone for expensive diagnostic tests that revealed absolutely no abnormalities; for the purchase of prescription narcotics; and for doctor visits made primarily to obtain the prescriptions. The record supports a finding that Ms. Adams should pursue non-narcotic pain management with Dr. McCann. However, he estimated his costs at about $2,500 per year, and projected treatment for “another few years.” The instant record will not support the District Court’s award of $10,000 in future medicals. Under the circumstances, the highest amount within the InDistrict Court’s discretion is $5,000. The judgment will be amended accordingly.

Conclusion

For the reasons expressed, the judgment is amended to reflect a general damage award of $45,000 and a future medical award of $5,000. As amended, the judgment is affirmed. Costs of appeal are assessed to the appellee, Ms. Adams.

AMENDED AND AFFIRMED.

      . Between June 2001 and January 2002, these prescriptions were actually written by Dr. McCann's partners, Dr. Blanda and Dr. Dar-ron McCann, his son. She also received a prescription for hydrocodone in June 2001 from another general practitioner in Marks-ville, a Dr. Plauché.

      . She also named her host driver, Jessie La-Prairie, and his insurer as defendants, but they were dismissed prior to trial.

      . Dr. McCann’s bill was $7,009.00; pharmacy bills were $5,648.70; physical therapy was $3,511.00. The remainder was for Drs. Cobb and Snatic and for diagnostic tests.

      . Reference is made to the plaintiff Mrs. Gui-droz, whose award was raised to $15,000, and not to Mrs. Smith, whose award of $100,000 (cited by the District Court) is supported by the aggravation of a pre-existing injury and other circumstances not present in the instant case.


author: b GASKINS, J.

text:
    Cecil E. ATWOOD, Plaintiff-Appellant, v. EWING TIMBER, INC., Defendant-Appellee.
    No. 36,732 WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 29, 2003.

      Flournoy, Doggett & Losavio, by Knight E. Doggett, Alexandria, for Appellant.
    Bobby L. Culpepper & Associates, by Bobby L. Culpepper, Jonesboro, Teresa C. Carroll, for Appellee.
    Before GASKINS, CARAWAY and KOSTELKA, JJ.
   b GASKINS, J.

In this worker’s compensation case, the claimant, Cecil E. Atwood, appeals from the refusal of the worker’s compensation judge (WCJ) to grant his request to accelerate his weekly supplemental earnings benefits (SEB) under La. R.S. 23:1333. The employer, Ewing Timber, Inc., answered the appeal, protesting the WCJ’s decision to award penalties and attorney fees and to continue the claimant’s SEB despite his alleged noncompliance with La. R.S. 23:1221(3)(f). For the reasons assigned below, we reverse in part, affirm in part and remand.

FACTS

The claimant filed a disputed claim for compensation form on October 30, 1998, in which he alleged a work-related back injury on October 2, 1998. He further asserted that his employer had failed to timely pay benefits or medical expenses, to authorize medical treatment, or to provide vocational rehabilitation.

Subsequently, the WCJ rendered judgment awarding the claimant total temporary disability (TTD) benefits of $367 per week from October 4, 1998 through April 30, 1999, and from December 1, 1999 continuing until he was released to return to work. He was also awarded SEB from May 1, 1999 through November 30, 1999, based on his actual earnings during the period. The judgment assessed legal interest from the due date of each installment until paid. The employer was ordered to pay all related medical expenses and to reimburse the claimant for travel and pharmacy expenses, together with legal interest. The employer suspensively appealed.

In Atwood v. Ewing Timber, Inc., 34,-045 (La.App.2d Cir.12/15/00), 774 So.2d 1140, writ denied, 2001-0543 (La.5/11/01), 792 So.2d 733, this court amended and affirmed as amended. Specifically, the court held that the claimant was not entitled to TTD benefits beyond the initial period following the injury; thus, the judgment was amended to award TTD benefits of $367 per week for the period of October 4 to October 19, 1998. However, he was found to be entitled to SEB in the amount of $326.66 per week for the period of October 20, 1998, through November 30, 1999, and the employer was ordered to continue paying him SEB thereafter in accordance with La. R.S. 23:1221(3)(a). The award of reimbursement for the claimant’s reasonable medical and travel expenses was affirmed. This court also found no error in the judgment’s assessment of legal interest on the weekly compensation benefits from the date due until paid. The employer’s request for rehearing was denied by this court on January 18, 2001, and the subsequent writ application to the Louisiana Supreme Court was denied on May 11, 2001. Thereafter, the claimant made written demand upon the employer for payment of the final judgment.

While the appeal was pending, the employer sought to have the claimant examined by a doctor. By letter dated February 21, 2000, the employer stated that it was willing to pay for the claimant to see his neurologist. However, no appointment for the claimant was scheduled by the employer.

On June 26, 2001, the claimant filed a motion for penalties, attorney fees and acceleration of benefits. He asserted that the judgment against the |3employer was final and that despite written demand, the employer had failed to pay any part of the judgment, including six successive installments as they became due. He further alleged that he was not protected by insurance. In addition to penalties and attorney fees under La. R.S. 23:1201(G), he requested that all installments of indemnity benefits not yet payable become due and that the judgment be made executory for the whole amount.

A hearing was held on July 23, 2001. The parties stipulated that the only payment made on the judgment by the employer was a check for $20,568.44, which was dated July 5, 2001 and covered benefits through February 21, 2000. The employer called as a witness Brandon Ewing, the owner of Ewing Timber. Among other things, he admitted that even though the appellate court had specifically awarded the claimant SEB of $326.66 per week for October 20, 1998 through November 30, 1999, he had unilaterally decided to deduct $1,400 for November 1999 because the claimant did not provide his earning information for that month.

The WCJ found that the failure to pay the judgment was “simply due to the recalcitrant attitude of the defendant” and that this behavior was a willful refusal under La. R.S. 23:1333. Although Mr. Ewing indicated in his testimony that they were waiting for some information to compute the payments, the WCJ observed that under the appellate court decision, no such additional information was required. Finding that the claimant had proven the necessary elements for acceleration, the WCJ granted his request for acceleration, together with legal interest from the maturity of each | ¿weekly payment. Since the employer failed to establish that the claimant’s entitlement to benefits had terminated or would terminate at a date earlier than the maximum recovery period, the WCJ ordered that the maximum number of weekly payments would be used to calculate the accelerated amount.

Pursuant to La. R.S. 23:1201(G), the WCJ further awarded a penalty of 24 percent of the total amount of indemnity benefits due, as well as attorney fees of $10,000. Judgment was signed August 29, 2001.

On August 9, 2001, the employer filed a notice with the Office of Workers’ Com-alisation (OWC) that benefits to the claimant had been stopped. The reason cited was his failure to see a doctor as requested in February 2000. However, the record does not show that there was a prior judicial determination that the exam was reasonable.

On August 28, 2001, the employer filed a motion for new trial. It asserted that the WCJ erred in accelerating the benefits and awarding penalties and attorney fees. It further alleged that the claimant failed to attend a functional capacity examination scheduled for August 16, 2001, at |Bthe North Louisiana Rehabilitation Hospital in Ruston even though notified of the appointment.

On September 24, 2001, the trial court granted the motion for new trial to determine: (1) if additional information was needed to calculate SEB before payment was made to the claimant; (2) whether the benefits would terminate at a future determinable date earlier than the maximum recovery period; (3) whether the defendant was justified in awaiting information about whether to make payment for medical expenses to the claimant or to Medicare; and (4) the period of the six missed installments.

On October 23, 2001, a hearing was held. The claimant testified on his own behalf; he stated that since the appellate court decision, the only money he had received from the employer was the $20,568.44 check dated July 5, 2001. The employer presented the testimony of its bookkeeper, David Sims. He testified that he had never handled a SEB case before and was unsure of how to calculate the payments. He asserted that he was waiting for additional information before paying. He also stated that he authorized the filing of the notice to the OWC that compensation payments had been stopped.

At the conclusion of the hearing, the WCJ amended the prior judgment to award SEB from October 4, 1998, through October 23, 2001, the date of the hearing. Finding that the employer failed to prove that the claimant was able to earn 90% of his preinjury wages, the WCJ ordered that [ fithose benefits continue until the claimant’s medical condition changed. The WCJ reaffirmed the penalties and attorney fees previously granted. However, acceleration was denied because the claimant had not proved the employer’s failure to pay six successive installments as they became due. Judgment was signed November 28, 2001. Costs were assessed against the employer.

The claimant appeals the WCJ’s refusal to order acceleration. The employer answered the appeal. It contends that the WCJ erred in awarding penalties in excess of $3,000 and in awarding excessive attorney fees. It further argues that the WCJ erred in continuing SEB payments.

ACCELERATION

La. R.S. 23:1333 allows acceleration of worker’s compensation benefits under certain circumstances. Four statutory elements must be satisfied prior to accelerating a prior award of weekly benefits. They include: (1) an “award awarding compensation” against the employer, (2) “insolven[cy] or fail[ure] to pay six successive installments as they become due” by employer, (3) existence of “installments not yet payable under the award,” and (4) the employee is not “adequately protected by insurance and receiving] payments thereunder.” Duncan v. State, DOTD, 615 So.2d 305 (La.1993); Eglin v. United Gas Pipeline, 95-721 (La.App. 3d Cir.1/24/96), 670 So.2d 250; Davillier v. Transit Management of Southeast Louisiana, 1997-2848 (La.App. 4th Cir.9/9/98), 718 So.2d 600.

Jurisprudence has added another requirement, that the failure to pay be a “willful refusal.” Duncan v. State, DOTD, 615 So.2d at 309; Eglin v. United Gas Pipeline, 670 So.2d at 254; Davillier v. Transit Management of Southeast Louisiana, 718 So.2d at 602. A finding of a “willful refusal” is one of fact to be reviewed under the Stobart appellate review standard of “manifest error.” Eglin v. United Gas Pipeline, supra.

The primary issue presented here is whether the WCJ erred in concluding that the claimant did not prove that the employer failed to pay six successive installments as they became due. The WCJ reasoned that under Duncan, the successive installments became due monthly. According to the WCJ, the first installment did not come due until 30 days after May 11, 2001, and then 30 days after that. We find that the WCJ erred in this conclusion.

In its discussion of the second requirement for acceleration in the Duncan case, the Louisiana Supreme Court stated, 615 So.2d at 309:

Once an employer demonstrates his recalcitrance by willfully refusing to pay an employee’s compensation benefits for six consecutive weeks, the employee should be allowed to collect the full amount of his award by acceleration. [Emphasis added.]

In Wyble v. Tunica Biloxi Gaming Economic Development, 2000-00534 (La.App. 3d Cir.11/2/00), 776 So.2d 501, that court specifically addressed an employer’s contention that “six successive installments” referred to monthly payments since the claimant received his SEB on a monthly basis. In dismissing this argument, the court observed that SEB payments are weekly in nature under the law.

If an application for certiorari to the supreme court is timely filed, a judgment of the court of appeal becomes final and definitive when the supreme court denies the application for certiorari. La. C.C.P. art. 2166(E). |R Thus, the appellate court judgment in favor of the claimant became final on May 11, 2001, as correctly determined by the WCJ. The employer made no attempt to pay until approximately eight weeks later. Therefore, under Duncan, the second requirement for acceleration is supported by the record.

Our review of the record indicates that all of the requirements for acceleration under La. R.S. 23:1333 have been satisfied. As to the third requirement, we specifically note that to avoid a judgment accelerating the maximum number of weekly benefit payments, the defendant must show that the plaintiffs entitlement to disability benefits has terminated or will terminate with a certain determinable number of payments less than the maximum number of payments. Duncan, supra. The record supports the acceleration of benefits as there are installments not yet payable under the award, and the employer did not carry his burden of proving that the benefits will terminate at a future determinable date earlier than the maximum recovery period.

The WCJ also found that the failure to pay was willful. In considering the issue of penalties and attorney fees, the WCJ concluded that there was a willful refusal to pay the benefits by the employer. The appellate court decision plainly directed the employer to institute weekly SEB payments to the claimant; it failed to do so in a timely manner. Although the employer claimed confusion as to the amounts owed, it was represented by counsel. Furthermore, as also noted by the WCJ, the employer could have sought advice elsewhere on this computation matter.

|9We remand this matter to the WCJ for entry of a judgment in conformity with this opinion. In particular, the WCJ is to determine the number of weeks remaining in the 520-week maximum period.

PENALTIES AND ATTORNEY FEES

Under La. R.S. 23:1201(G), an employer is liable for penalties and attorney fees if it does not pay an award payable under a final, nonappealable judgment within 30 days. It states:

G. If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate. [Emphasis added.]

Awards of penalties and attorney fees in workers’ compensation cases are penal in nature and are imposed to discourage undesirable conduct by employers and insurers toward injured employees. Bellanger v. LaSalle Community Action, 2002-299 (La.App.3d Cir.10/2/02), 827 So.2d 599. See also Langley v. Petro Star Corp. of La., 2001-0198 (La.6/29/01), 792 So.2d 721. The WCJ has great discretion in awarding penalties and |inattorney fees and her discretion will not be disturbed absent manifest error. Bellanger v. LaSalle Community Action, supra.

Penalties

The employer argues that the maximum penalty available under La. R.S. 23:1201(G) is $3,000. • However, the statute is clear and unambiguous. While the $100 per day penalty provided for therein is limited to $3,000, the 24 percent penalty is not. Bordelon v. Inland Industrial Contractors, 2001-1442 (La.App. 3d Cir.3/6/02), 810 So.2d 1272, writ denied, 2002-0980 (La.6/7/02), 818 So.2d 768 (statutory penalty of $12,768 affirmed). See also Bellanger v. LaSalle Community Action, supra (statutory penalty of $4,316.92); and Kessel v. Hotel Dieu Hospital, 2002-0896 (La.App. 4th Cir.10/16/02),- 830 So.2d 1057 (statutory penalty of $24,000).

According, the portion of the judgment awarding 24 percent statutory penalties is affirmed.

Attorney Fees

The employer argues that the $10,000 award of attorney fees is excessive.

The factors to be considered in the imposition of the attorney fee in workers’ compensation cases include the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the claimant, and the amount of time the attorney devoted to the case. Tatum v. St. Patrick’s Psychiatric Hospital, 34,957 (La.App.2d Cir.8/22/01), 794 So.2d 958. There is no requirement that the trial court hear ^evidence concerning the time spent or the hourly rates charged to make an award of attorney fees since the record will reflect much of the services rendered. Tatum v. St. Patrick’s Psychiatric Hospital, supra. The degree of bad faith exhibited by the employer is not an appropriate factor in determining the amount of attorney fees to be awarded under La. R.S. 23:1201(G). Langley v. Petro Star Corp. of La., supra.

We find that the amount of $10,000 for attorney fees is not unreasonably high for all of the work performed by claimant’s counsel, both at the lower level and at the appellate level. At the time of the first hearing, he estimated that he had spent 50 hours working on the case. Thereafter, he was required to respond to the employer’s motion for new trial; he prepared for and attended a second hearing. He then appealed the matter, suecess-fully procuring a reversal of the WCJ’s refusal to accelerate. As to the answer to the appeal, he successfully defended the award of penalties. Accordingly, we affirm the WCJ’s award of attorney fees.

CONCLUSION

The portion of the judgment denying the claimant’s request for acceleration is reversed. We remand this matter to the lower court for entry of a judgment in favor of the claimant in accordance with this opinion. In all other respects, the judgment is affirmed.

Costs of this appeal are assessed against Ewing Timber, Inc.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.

      . Review of the computation sheet accompanying the check shows that the amount of the check did not include interest.

      .An employer is not entitled to suspend a disabled employee’s right to compensation for failure to report for a medical examination until there has been a prior judicial determination that the medical examination requested by the employer is reasonable. La. R.S. 23:1124; City of Jennings v. Clay, 1998-225 (La.App. 3d Cir.10/14/98), 719 So.2d 1164; Knight v. General Accident Insurance Company, 496 So.2d 1141 (La.App. 4th Cir.1986); Seaberry v. T.G. & Y. Stores Company, 467 So.2d 12 (La.App. 1st Cir.1985), writ denied, 470 So.2d 121 (La.1985). See also Spence v. Industrial N.D.T., 31,744 (La.App.2d Cir.3/31/99), 731 So.2d 473; Collins v. General Motors Corporation, 605 So.2d 219 (La.App. 2d Cir.1992).

      . Formerly prohibited, motions for new trial are now permitted in worker's compensation cases. La. R.S. 23:1310.5(B).

      . However, testimony subsequently demonstrated that the claimant was not given the 14-day notice for this examination required under La. R.S. 23:1124.

      . On November 7, 2001, the WCJ issued written reasons supporting the granting of the motion for new trial.

      . In brief, the employer refers to La. R.S. 23:1221(3)(f) and asserts that the claimant's failure to timely provide copies of his monthly earnings reports somehow calls into question the WCJ's award of SEB payments through the date of the October 23, 2001 hearing. In its answer to the appeal and at oral argument, it contended that this failure resulted in a forfeiture of the claimant's benefits. However, the employer cites no support for this argument. Accordingly, we will not consider this issue further.