text:
    Tiffany A. BAKER v. CITY OF LEESVILLE, et al.
    No. 13-480.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 2013.

      Daniel E. Broussard, Jr., Broussard, Bolton, Halcomb, Aaron L. Green, Vilar & Elliott, Alexandria, LA, for Plaintiff/Appellant, Tiffany A. Baker.
    Jack L. Simms, Jr., Attorney at Law, Leesville, LA, Brian D. Cespiva, Attorney at Law, Alexandria, LA, for Defendant/Ap-pellee, Leesville Municipal Fire and Police Civil Service Board.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PETERS, J.

[,The plaintiff, Tiffany A. Baker, appeals a trial court judgment rejecting her claim for statutory penalties and attorney fees associated with a public records request to the Leesville Municipal Fire and Police Civil Service Board (Board) and the City of Leesville (City). For the following reasons, we affirm the trial court judgment with respect to the Board, but reverse the judgment with respect to the City and render judgment in favor of Ms. Baker, awarding her attorney fees and statutory penalties.

DISCUSSION OF THE RECORD

On July 25, 2012, Ms. Baker’s attorney forwarded a written request for copies of public records to both the City and the Board. The requests, which were made pursuant to La.R.S. 44:3, et seq., the Louisiana Public Records Law, sought to obtain copies of the following documents or public records:

(1) Any and all documents, correspondence, ordinances, resolutions and any other documents that pertain to or involve the rate at which each rank of Leesville fire employees accumulate(d) annual leave from January 1, 2007 through present date;
(2) Any and all documents, correspondence, ordinances, resolutions and any other documents that pertain to or involve the policies and/or procedures adopted by the City regarding the accumulation or use of annual leave by Leesville fire employees from January 1, 2007 through present date';
(3) Any and all documents, correspondence, summaries and any other documents that list and/or describe the amount of annual leave accumulated and/or used by each current and former Leesville fire employee from January 1, 2007 through present date (we request that the name of each current and former fire employee be provided with the requested annual leave information, but that any and all private or sensitive information be redacted); and
(4) Any and all documents, agendas, meeting minutes, meeting recordings; meeting transcripts, or other documents pertaining | gor related to any and all meetings of the Leesville Municipal Fire & Police Service Board from January 1, 2012 through present date.

Both the City and the Board received a faxed copy of the request on July 25, 2012. The City received a duplicate original of the request by certified mail the next day, and the Board received its duplicate original by certified mail on July 31, 2012.

The Board responded to the public records request through a July 31, 2012 letter from its attorney to Ms. Baker’s attorney which stated in pertinent part:

Please allow this correspondence to confirm our conversation this afternoon wherein you have granted the Leesville Municipal Fire and Police Civil Service Board an extension of time to respond to the public records request[.]

The City did not respond at all.

When neither the City nor the Board had provided Ms. Baker with any of the requested documents by November 2, 2012, she filed the action now before us. Naming both the City and the Board as defendants, Ms. Baker sought a judgment awarding her a statutory penalty of $100.00 per day from each defendant for the period beginning when the responses were due until the defendants properly responded. Additionally, ■ Ms. Baker sought a judgment awarding her a reasonable attorney fee from each defendant.

Because Ms. Baker sought expedited consideration of her demands, the trial court held a rule to show cause hearing on November 29, 2012. At the hearing, counsel for Ms. Baker acknowledged that the Board had produced at least part of the requested public records, but only after she filed suit. In defense of its inaction, the Board introduced a copy of the July 31, 2012 letter to Ms. Baker’s counsel and took the position that the extension granted by Ms. Baker had no termination date. That being the case, the Board argued, the extension of time in which to respond |swas still in effect when suit was filed. Counsel for Ms. Baker countered that the extension was not intended to be “indefinite” or “open-ended” and that Ms. Baker had expected a much earlier response.

When questioned by the trial court concerning the City’s failure to respond, counsel for the City stated:

Well, Your Honor, it’s — the answer is very simple. The request was made, it was my understanding after communicating with [counsel for the Board] we thought and we still do think that everything they’re requesting is on record with the Civil Service Board, not the City. But, be that as it may, if it were on record in the City they made the request, all they’ve got to do is come inspect and copy it. We don’t have to do that for them. That’s the law is they come over there and copy it. We don’t — we don’t have to put an employee to work for two weeks doing that.

Later in argument to the trial court, counsel for the City stated that “[w]e assumed that that was taken care of by the Board.”

The trial court took the matter under advisement and, on January 10, 2013, filed written reasons for judgment wherein it recognized that both the City and Board received the July 25, 2012 request for production of the public records; the Board responded by asking for and obtaining an extension of time in which to respond; and the City did not respond at all. However, despite further finding that Ms. Baker was entitled to the requested public record, the trial court concluded that La.R.S. 44:32(D) precluded an award of penalties and attorney fees.

Because the written reasons for judgment included a paragraph stating that “IT IS ORDERED, ADJUDGED AND DECREED that a Writ of Mandamus issue but without an award of penalties and attorneys fees[,]” Ms. Baker treated it as a final judgment and timely perfected this appeal. In her appeal, she asserts in her single assignment of error that the trial court erred in not awarding her penalties [4and attorney fees against both the City and the Board for their failure to respond to her public records request.

OPINION

The right of an individual to examine public records is statutorily provided for in La.R.S. 44:31, which states that:

A. Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.
B. (1) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person may obtain a copy or reproduction of any public record.
(2) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person may obtain a copy or reproduction of any public record.
(3) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.

Additionally, La.R.S. 44:32(A) provides in part that “[t]he custodian shall present any public record to any person of the age of majority who so requests.” In fact, La. R.S. 44:32(C)(l)(a) and (d) provide that the custodian has a “duty” to provide the requested records. The only exception to the mandated production is when there exists a question concerning whether the requested record is a public record.

In any case in which a record is requested and a question is raised by the custodian of the record as to whether it is a public record, such custodian shall within three days, exclusive of Saturdays, Sundays, and legal public holidays, of the receipt of the request, in writing for such record, notify in writing the person making such request of his determination and the reasons therefor. Such written notification shall contain a reference to the basis under law which the custodian has determined exempts a record, or any part thereof, from inspection, copying, or reproduction.

La.R.S. 44:32(D).

|fiIf segregation of the requested records within the custodian’s office is “unreasonably burdensome or expensive” or if the record is not immediately available, the custodian must certify these difficulties in writing to the individual requesting the records while still taking the steps necessary to make them available. La.R.S. 44:38(A)(2). Additionally, if the records requested are “not in the custody or control of the person to whom the application is made, such person shall promptly certify this in writing to the applicant[.]” La.R.S. 44:34.

Failure on the part of the custodian of the requested records to allow the records to be inspected or copied gives rise to an enforcement cause of action under La.R.S. 44:35, which provides:

A.Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney’s fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.
B. In any suit filed under Subsection A above, the court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld from the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action. The court may view the documents in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court.
C. Any suit brought in any court of original jurisdiction to enforce the provisions of this Chapter shall be tried by preference and in a summary manner. Any appellate courts to which the suit is brought shall place it on its preferential docket and shall hear it without delay, rendering a decision as soon as practicable.
D. If a person seeking the right to inspect or to receive a copy of a public record prevails in such suit, he shall be awarded reasonable attorney’s fees and other costs of litigation. If such person | ^prevails in part, the court may in its discretion award him reasonable attorney’s fees or an appropriate portion thereof.
E. (1) If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.
(2) The custodian shall be personally liable for the payment of any such damages, and shall be liable in solido with the public body for the payment of the requester’s attorney fees and other costs of litigation, except where the custodian has withheld or denied production of the requested record or records on advice of the legal counsel representing the public body in which the office of such custodian is located, and in the event the custodian retains private legal counsel for his defense or for bringing suit against the requester in connection with the request for records, the court may award attorney fees to the custodian.
F. An award for attorney fees in any suit brought under the provisions of this Chapter shall not exceed the amounts approved by the attorney general for the employment of outside counsel.

(Emphasis added.)

In this matter, it is undisputed that neither the City nor the Board raised any questions concerning the status of the requested documents as public records within three days of receipt of the request as required by La.R.S. 44:32(D). Nor did either the City or the Board respond in writing that the requested records were not in their custody, unavailable, or unreasonably burdensome or expensive to produce. Thus, both the City and the Board had a statutory duty to produce the requested records, and the only question for this court to decide is whether the trial court erred in not awarding Ms. Baker penalties and attorney fees pursuant to La.R.S. 44:35.

| .¡Action of the Trial Court

The trial court held that La.R.S. 44:32(D) precluded an award of penalties and attorney fees from either defendant, stating in its reasons for judgment that:

A plain reading of the Statute reveals that the penalties apply only when a question is raised about the nature of the records being sought as being public records or some exclusion to the disclosure requirements is raised by the custodian. Washington v. Reed, 95-1067, 668 So.2d 1313 (La.App. 1st Cir.2/3/96).

We find that neither La.R.S. 44:32(D) nor the decision in Washington support the trial court’s rejection of Ms. Baker’s request for penalties and attorney fees. Louisiana Revised Statutes 44:32(D) makes no mention of penalties and attorney fees and merely sets forth the delay applicable for a custodian to assert that a requested record is not a public record. Additionally, the first circuit in Washington was addressing a public records request by a prisoner to the District Attorney’s office and the Clerk of Court’s office. The plaintiff interpreted La.R.S. 44:32(D) to require the custodians to respond to his requests within three days or suffer the penalties provided for in La.R.S. 44:35(E)(1). The first circuit concluded that an award of penalties is not related to the three-day provision of La.R.S. 44:32(D), but instead to whether or not the custodians were arbitrary and capricious in dealing with the records requests.

Thus, we find that the trial court erred as a matter of law in finding La.R.S. 44:32(D) to be dispositive of the issues before it.

A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo.

Evans v. Lungrin, 97-541, 97-577, p. 7 (La.2/6/98), 708 So.2d 731, 735 (citations omitted).

However, the conclusion that the trial court erred as a matter of law in rejecting the claim for penalties and attorney fees does not automatically require such awards in favor of Ms. Baker. Instead, we must now perform a de novo review of the record to determine whether she is entitled to relief against either custodian.

Leesville Municipal Fire and Police Civil Service Board Claim

We find no error in the trial court’s denial of a penalty and attorney fee award against the Board. The Board did not deny Ms. Baker the right to inspect or copy the requested public records. Instead, it sought and obtained an extension of time in which to respond and that extension was still in effect when Ms. Baker filed her suit for mandamus. Furthermore, Ms. Baker did not present any evidence to establish that the Board’s delay in responding was caused by anything other than the time required to compile the requested records.

City of Leesville Claim

The claim against the City is factually different from the claim against the Board. Not only did the City fail to obtain an extension of time in which to respond, but it ignored the request altogether. Its only explanation was that it assumed the Board would produce all of the necessary records. At the trial on the rule, the City acknowledged that it had still not responded in any way, and the trial court issued a mandamus to the City ordering it to produce the requested records.

With regard to the request for attorney fees, La.R.S. 44:35(D) states that the trial court “shall” award a reasonable attorney fee when the person seeking the public records prevails in his or her suit. The only restriction on that award is that it “shall not exceed the amounts approved by the attorney general for the |9employment of outside counsel.” La.R.S. 44:35(F). In this case, Ms. Baker prevailed against the City and is entitled to a reasonable attorney fee award.

Factors to be taken into consideration in determining the reasonableness of attorneys’ fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances made; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge. Rivet v. State, Department of Transportation and Development, 96-0145, pp. 11-12 (La.9/5/96), 680 So.2d 1154, 1161. In making an award of attorneys’ fees, the trial court is vested with considerable discretion, and the award will not be disturbed in the absence of clear abuse of discretion. St. Tammany Parish Hospital Service District No. 2 v. Schneider, 2000-0247, pp. 13-14 (La.App. 1st Cir.5/11/01), 808 So.2d 576, 587.

Capital City Press v. Bd. of Sup’rs of La. State Univ., 01-1692, p. 3 (La.App. 1 Cir. 6/21/02), 822 So.2d 728, 731.

In applying the factors set forth in Capital City Press to the matter before us, we note that Ms. Baker was awarded the relief she sought, a mandamus ordering the production of the requested documents; her legal counsel was diligent in representing Ms. Baker, and this diligence was the basis for the recovery; and the concept of making available public records for inspection is of significant importance to our society in general. While the Louisiana Public Records Law is not overly complicated, claims are not common, and, therefore, they require that an attorney do extraordinary research in each individual case. The record before us contains no evidence of the hours spent by Ms. Baker’s counsel, nor does it establish her attorney’s hourly rate. It does establish, however, that her counsel prepared the proper records requests and caused them to be served on the City, prepared and filed the petition giving rise to this litigation, corresponded with counsel for the Board, appeared at the November 29, 2012 hearing, and perfected this appeal. Considering the record before us and the factors set forth in Capital |10City Press, we award Ms. Baker reasonable attorney fees in the amount of $3,500.00.

While an attorney fee award is mandated by statute if a litigant obtains recognition of his or her right to receive a copy of a public record, penalties are only awarded on the basis of unreasonable and arbitrary withholding of public records by the custodian after a request for such records. La.R.S. 44:35(E)(1). Assuming a finding of unreasonable and arbitrary action, the award of penalties is left to the discretion of the factfinder. Id.

The City received a faxed copy of Ms. Baker’s request on July 25, 2012, and received the original written request the next day. It took no action to comply or respond. Ninety-nine days later when Ms. Baker filed her November 2, 2012 mandamus action, the City still had not responded in any way. Twenty-seven days after the filing of the mandamus action, the rule to show cause hearing was held, at which time the City still had not responded. Its defense at the trial on the rule was that it assumed everything would be taken care of by the Board and that, in any event, if Ms. Baker wanted to inspect and copy the documents, she could come to the City’s office and do so. In other words, the City simply ignored the law pertaining to a citizen’s access to public records. We find the inaction on the part of the City to be unreasonable and arbitrary.

Because the trial court erroneously disposed of the litigation by applying La.R.S. 44:32(D), it never reached the question of whether the City was unreasonable and arbitrary and, therefore, never asserted its discretion in determining whether the City should be assessed the daily penalty provided for in La.R.S. 44:35(E)(1). Reviewing this issue de novo, we conclude that Ms. Baker is entitled to a penalty for the City’s unreasonable and arbitrary denial of her public |nrecords request, and we set that penalty at $25.00 per day, “exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.” Id.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment rejecting Tiffany A. Baker’s claims for attorney fees and statutory penalties against the Leesville Municipal Fire and Police Civil Service Board. However, we reverse the trial court’s judgment rejecting Tiffany A. Baker’s claims for attorney fees and statutory penalties against the City of Leesville, and we render judgment in favor of Tiffany A. Baker and against the City of Leesville, awarding her $3,500.00 in attorney fees and a civil penalty of $25.00 per day, exclusive of Saturdays, Sundays, and legal public holidays, to run from July 26, 2012, until the City of Leesville complies with the public records request. We assess all costs of this appeal to the City of Leesville, and pursuant to La.R.S. 13:5112(A), we set those costs at $809.62.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    John CARRIERE v. PATIENT’S CARE MEDICAL SUPPLY.
    No. 13-580.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 27, 2013.

      Michael B. Miller, Miller & Miller, Crowley, Louisiana, for Plaintiff/Appellant, John Carriere.
    Mark A. Ackal, Mark A. Ackal & Associate, Lafayette, Louisiana, for Defendant/Appellee, Patient’s Care Medical Supply-
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

_JjThe plaintiff, John Carriere, appeals from a judgment rendered by the workers’ compensation judge (WCJ) finding that although he suffered an injury-producing accident in the course and scope of his employment with Patient’s Care Medical Supply (PCMS), he was not entitled to receive any indemnity benefits or medical treatment, including physical therapy, after September 16, 2011. For the following reasons, we affirm in part, vacate in part, and remand.

FACTS AND PROCEDURAL HISTORY

Carriere began working for PCMS in March of 2011 as a driver and deliveryman of medical supplies and equipment. On Thursday, July 14, 2011, he and co-worker, Quy Kim, were replacing a customer’s recliner/lift chair. Carriere testified that they had to move the old chair from the customer’s living room to make space for the new chair. When they were about half way to the curb, they dropped the old chair because it was “very heavy” and he felt a “pull” in his lower back. They pushed the chair the rest of the way to the street with their feet. Carriere continued working that day, and he worked as usual the next day without mentioning the incident to his employer. However, after suffering increased pain over the weekend, Carriere notified PCMS of his injury on the following Monday, along with his intent to avoid returning to work until he could be examined by Dr. John Cobb, an orthopedic surgeon. PCMS opened a workers’ compensation claim on Carriere’s behalf at the time and began paying him weekly indemnity and medical benefits.

Dr. Cobb diagnosed Carriere with post-traumatic lumbar pain syndrome. He recommended that Carriere attend physical therapy and placed him on no-work 12status for one month. Dr. Cobb released Carriere to light duty on August 24, 2011. After returning to work for three weeks at light duty, Carriere called Dr. Cobb’s office to report that he was unable to complete his job duties due to increased pain. Dr. Cobb placed Carriere back on no-work status on September 16, 2011, and PCMS reinstated Carriere’s indemnity benefits at that time. Carriere had not returned to any employment when this matter went to trial on September 16, 2012.

Carriere filed a 1008 Disputed Claim for Compensation (1008) against PCMS in December of 2011, seeking an increase in his workers’ compensation rate, authorization for continued physical therapy, and penalties and attorney fees for PCMS’s improper payment of benefits and denial of medical treatment.

Following a trial, the WCJ rendered judgment, finding that Carriere was injured in a workplace accident in the course and scope of his employment with PCMS on July 14, 2011. She found, however, that because Carriere failed to prove that he suffered a continuing disability that rendered him unable to work and earn 90% of his pre-injury wages after September 16, 2011, PCMS was entitled to a credit for all indemnity benefits paid to Carriere after that date. The WCJ further determined that Carriere was not entitled to future medical treatment and that additional physical therapy was no longer medically necessary. Finally, Carriere was awarded a $2,000.00 penalty and $2,000.00 in attorney fees for PCMS’s miscalculation of his average weekly wage. Carriere now appeals.

ASSIGNMENTS OF ERROR

Carriere asserts that the WCJ erred:

1) in failing to award any weekly indemnity benefits and in awarding PCMS a credit against all indemnity benefits paid after September 16, 2011;
|s2) in finding that additional physical therapy ordered by Dr. Cobb was not medically necessary and in denying a penalty under La.R.S. 23:1201(F) for PCMS’s denial of physical therapy;
3) in finding that Carriere was not entitled to further medical treatment;
4) in excluding a copy of the check stubs Carriere received from commissions paid to him by PCMS;
5) in finding that the average weekly wage was $469.86 and the workers’ compensation rate was $313.26;
6) in only awarding $2,000.00 in attorney fees and in limiting the attorney fees based on the penalties upon which Carriere prevailed at trial; and
7) in failing to award any expenses.

Carriere further submits that because the WCJ committed several legal errors, a de novo review is proper.

DISCUSSION

Standard of Review

Carriere asserts that the WCJ committed legal error: 1) in relying upon documents that had previously been excluded from evidence when rendering its decision in this matter; 2) in failing to exclude a letter written by him to his supervisor which was neither authenticated by him nor furnished to him prior to trial; and 3) in finding that the sedentary work offered to him by PCMS did not have to be approved by his treating physician. Based on those alleged errors, Carriere contends that this court should conduct a de novo review of the record rather than the manifest error/clearly wrong standard of review normally employed in appellate review of workers’ compensation cases.

PCMS counters that while the WCJ did mention the excluded evidence in its ruling, such fleeting reference was nonconse-quential given the overwhelming 14evidence of Carriere’s lack of credibility. It further claims that although admitted into evidence, the letter objected to by Carriere was not crucial to the WCJ’s ruling and actually bolstered rather than hurt Carri-ere’s claims. Finally, PCMS contends that the WCJ committed no error in ruling that PCMS did not have to present a formal offer of sedentary work to Carriere’s physician based on the WCJ’s firm belief that Carriere was not credible and that the physician would have approved that work given his prior approval of light-duty work. In sum, citing Russell v. H & H Metal Contractors, Inc., 11-27, p. 8 (La.App. 3 Cir. 6/1/11), 65 So.3d 806, 814, PCMS submits that even if the WCJ committed any erroneous evidentiary rulings, a de novo review is not warranted in this case because such error was not “‘serious’ and ‘consequential.’ ”

The documents that Carriere refers to in the first part of his argument were offers for sexual conduct that Carri-ere posted online on September 16, 2011, the same day Dr. Cobb returned him to no-work status. The WCJ found the documents inadmissible because they had not been provided to Carriere’s attorney during discovery and because the potential prejudice outweighed the probative value. PCMS then proffered the documents and questioned Carriere about them out of the presence of the WCJ. In its oral ruling, the WCJ made the factual finding that despite his testimony to the contrary, Carriere did call Dr. Cobb’s office on September 16, 2011 to request that he be taken off work. It then noted that “his actions of posting ... his interests in sexual activities” on the same day “were inconsistent with someone who is having so much trouble working! ] that they can’t go anymore.” Clearly, the WCJ erred in referring to evidence which it had previously ruled was inadmissible. Nevertheless, we are convinced that such error was not serious or consequential given the WCJ’s finding that Carriere was Rsimply not credible, a finding that was expressed several times during the trial and in oral reasons for ruling. See Russell, 65 So.3d 806. De novo review is not warranted on this basis.

The letter that Carriere refers to in the second part of his argument was introduced into evidence while Cindy Artello, PCMS’s operations manager, was being questioned in PCMS’s case-in-chief. The handwritten letter is dated November 8, 2011; it is addressed to “Ashley” and signed “John.” According to the letter, Carriere was “still in pain off and on[,] sometimes worse days than others.” The letter referred to a “no-work” status from an interim doctor that Carriere had seen the day before and explained that the doctor was going to give him spinal injections to try to alleviate his pain. In allowing the letter into evidence, the WCJ stated that it did not think that the letter was the “type of statement covered by” La.R.S. 13:37S2. In the absence of any case law interpreting that statute to the contrary, we conclude that the WCJ did not err in allowing the November 8, 2011 letter into evidence. Moreover, any error that the WCJ made in admitting the letter was harmless given the fact that the letter lends support to Carriere’s claim that he was still experiencing pain when it was written.

Carriere next contends that de novo review is warranted because the WCJ ruled that his treating physician did not have to approve the sedentary job allegedly offered to him by PCMS. As Carriere acknowledges in his appellant brief, this court has held that “physician approval ... is not required for the employer to meet its burden” that it offered a claimant a suitable job. City of Jennings v. Doucet, 03-1099,B p. 4 (La.App. 3 Cir. 2/4/04), 865 So.2d 1056, 1059-60. In the instant case, the WCJ found that PCMS offered Carri-ere a job “he was capable of doing!;] that was within his geographical area and within his physical restrictions.” The WCJ stated that it “ha[d] no question that the doctor would have approved sedentary duty had it been presented to him,” and that “any reluctance on the doctor’s part to do that ... would have been based solely on Mr. Carriere’s complaints which ... I don’t find completely credible.” Given the law and the particular facts in this matter, we cannot say that the WCJ erred in finding that PCMS did not have to get physician approval for the sedentary job it offered to Carriere.

Because we have found no merit to Car-riere’s arguments that de novo review is proper, we will apply the manifest error/clearly wrong standard of review in this matter. See Foster v. Rabalais Masonry, Inc., 01-1394 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784. In light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61.

Indemnity Benefits

Carriere contends that the WCJ erred in failing to award him any weekly indemnity benefits after September 16, 2011, and in finding that PCMS was entitled to a credit for all indemnity benefits that it made prior to that date. He argues that a WCJ can only look at the medical evidence when deciding whether to award a workers’ compensation claimant benefits, and he takes fault with the |7WCJ’s reliance on its observations of him during trial in denying him the indemnity benefits that he sought.

PCMS counters that a WCJ, as a fact finder, can rely on its observations of a witness’s demeanor and its assessment of a witness’s credibility when deciding whether to award benefits to a particular claimant. Accordingly, it submits that the evidence supports the decision of the WCJ regarding indemnity benefits owed to Car-riere and that the decision should be affirmed.

In Odom v. Kinder Nursing Home, 06-1442, p. 5 (La.App. 3 Cir. 4/25/07), 956 So.2d 128, 132, this court noted:

“The issue of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. LeBlanc [v. Grand Isle Shipyard, Inc., 95-2452 (La.App. 1 Cir. 6/28/96) ], 676 So.2d [1157,] 1161. The issue of disability is determined with reference to the totality of the evidence, including both lay and medical testimony. LeBlanc, 676 So.2d at 1161.” Walker v. High Tech Refractory Servs., Inc., 03-1621, p. 4 (La.App. 1 Cir. 6/25/04), 885 So.2d 1185, 1188.

In Magee v. Abek, Inc., 04-2554, p. 5 (La. App. 1 Cir. 4/28/06), 934 So.2d 800, 807, writ denied, 06-1876 (La.10/27/06), 939 So.2d 1287, the first circuit noted that “[a] claimant’s lack of credibility on factual issues can serve to diminish the veracity of his complaints to a physician,” and that “in many cases, the credibility of the history given by the claimant to his physicians becomes as important as the medical opinions based in part on that history.”

At the trial of this matter, Ms. Artello, PCMS’s operations manager, and Andrew Szaniszlo, a former co-owner of PCMS, testified that Carriere complained of lower back pain before the chair-lifting incident. Both testified that Carriere did |snot appear to be injured during the three weeks that he returned to work after being released to light-duty work by Dr. Cobb on August 24, 2011. Finally, both recalled being surprised when Carriere told them that Dr. Cobb had returned him to no-work status on September 16, 2011.

It is clear from our review of the record that the WCJ carefully examined the medical evidence in this matter. Nevertheless, after observing Carriere’s demeanor on the witness stand and hearing the testimonies of Carriere, Ms. Artello, and Mr. Szaniszlo, the WCJ questioned the veracity of the complaints that Carriere made to his doctors following his July 14, 2011 accident. Given the fact that a WCJ can look to both lay testimony and medical evidence when determining the extent and duration of an injured claimant’s disability, we cannot say the WCJ erred in finding that Carriere was not entitled to indemnity benefits after September 16, 2011. See Odom, 956 So.2d 128. This assignment of error lacks merit.

Additional Physical Therapy

Carriere next contends that the WCJ erred in finding that he was not entitled to the additional physical therapy ordered by Dr. Cobb and in failing to award him a penalty for PCMS’s improper denial of the medically necessary physical therapy. PCMS counters that there was no error in the WCJ’s ruling in this regard, given its determination that Carriere had returned to his pre-injury status by September 16, 2011.

We have already affirmed the WCJ’s finding that Carriere was not entitled to receive any indemnity benefits after September 16, 2011. In that same vein, we cannot say that the WCJ erred in finding that Carriere failed to prove that requested | physical therapy was medically necessary after that date. This assignment of error lacks merit.

Additional Medical Treatment

Carriere submits that there is no medical evidence in the record to support the WCJ’s finding that he was not entitled to any further medical treatment. PCMS counters that the WCJ’s decision in this record is correct given Carriere’s questionable credibility, his long-standing complaints of back pain prior to the complained-of injury, and the conservative treatment offered to Carriere by his medical care providers.

As stated previously, a WCJ can take into account the claimant’s credibility when evaluating the medical evidence in a workers’ compensation matter. See Magee, 984 So.2d 800. In its oral ruling, the WCJ acknowledged that there was conflicting evidence regarding whether Carriere was entitled to further medical treatment. Ultimately, however, after specifically finding that Carriere had “exaggerated his complaints” to his physician, it found that he was “back to his baseline.” Given the totality of the evidence and the appellate standard of review when reviewing a WCJ’s finding of disability or lack thereof, we cannot say that the WCJ erred in determining that Carriere had returned to his pre-accident status and was not entitled to further medical treatment. There is no merit to this assignment of error.

Exclusion of Check Stubs

At the start of trial, the WCJ refused to admit into evidence copies of the check stubs Carriere received from PCMS showing the commissions he received during the twenty-six-week period prior to his accident on the grounds of surprise, since they had not been produced by Carriere in response to PCMS’s discovery |inrequests. The checks stubs were proffered as Plaintiffs Proffer 1. Carriere contends that it was error for the WCJ to conclude that PCMS’s own check stubs could have been a surprise to it at trial. PCMS submits that the exclusion was immaterial because the commissions noted on those check stubs were included in the materials that Clint Dobson, the claims adjuster assigned to Carriere’s claim, testified that he used to calculate the average weekly wage.

We have closely examined the record and the check stubs found in Carriere’s proffer are included in the wage and commission records found in Defendant’s Exhibits 7 and 10. At trial, Mr. Dobson testified that although he was not initially aware that Carriere worked on commissions, once he realized that fact, he contacted PCMS and they provided him with the information contained in Defendant Exhibit 10 which he used to recalculate Carriere’s average weekly wage. Accordingly, we conclude that the exclusion of the check stubs was immaterial since the material included therein was, in fact, admitted into evidence during PCMS’s case-in-chief.

Average Weekly Wage/Workers’ Compensation Rate

Carriere argues that the WCJ erred in finding that the average weekly wage was $469.86 and the workers’ compensation rate was $813.26. He contends that La. R.S. 28:1021(12)(a)(i) dictates that PCMS should have calculated his average weekly wage by multiplying his hourly rate, be that regular or overtime, by the hours that he worked instead of using the actual earnings paid to him. Finally, Carriere submits that he was underpaid wages for the week ending July 11, 2011, |ni.e., he was paid regular rather than overtime wages for seven and a half hours of overtime, and that such underpayment resulted in an erroneous average weekly wage calculation.

While PCMS does not dispute that it may have underpaid Carriere on his July 11, 2011 pay check, it argues that Carriere should not be able to raise this issue for the first time on appeal since there is no way to determine at this point what may have affected the amount of his July 11, 2011 pay check. PCMS submits that even using the calculations proposed in Carri-ere’s appellate brief, he was only underpaid $8.13 on the pay check in question. It argues that if PCMS had failed to pay Carriere overtime wages on his July 11, 2011 paycheck, the underpayment would have been nearly $40.00.

In its oral ruling, the WCJ stated that because it had not been provided with an alternative calculation of Carriere’s average weekly wage, it would use the one set by Mr. Dobson in January of 2012, which resulted in a weekly indemnity rate of $313.26. Carriere has convinced this court that he was underpaid on his July 11, 2011 paycheck. Mr. Dobson calculated Carriere’s average weekly wage from the wages that were actually paid to him. Given PCMS’s underpayment of wages to Carriere, Mr. Dobson’s calculation is necessarily incorrect. Because we are unable to determine the exact cause and amount of that underpayment, we vacate the judgment insofar as it sets out Carriere’s average weekly wage and his weekly indemnity rate, and we remand this matter for a “proper and accurate determination” of Carriere’s average weekly wage. Cotton v. First Fleet, 08-1363, p. 8 (La.App. 3 Cir. 4/1/09), 7 So.3d 155, 160, writ denied, 09-978 (La.6/19/09), 10 So.3d 741.

Attorney Fees

Citing Magbee v. Federal Express, 12-77 (La.App. 3 Cir. 12/12/12), 105 So.3d 1048, Carriere argues that the WCJ erred in limiting the attorney fees awarded to the penalty for which he prevailed at trial. He contends that the $8,225.00 (forty-seven hours times $175.00 contingent hourly rate) sought in attorney fees was reasonable based upon the time and work expended by his attorney in this matter. PCMS counters that the attorney fee award made in this case was proper given the outcome of this case and the fact that it was found to be owed a credit of more than $15,000.00 for its overpayment of indemnity benefits.

In Magbee, the claimant sought an award of $14,550.00 in attorney fees, but the WCJ awarded him $7,000.00. According to the oral reasons for judgment, the WCJ based the attorney fee award on the claimant having prevailed on three of the eight issues for which it had sought penalties. In amending the judgment to increase the attorney fee award, this court agreed with the claimant’s premise that the “award should be based on the efforts of his attorneys relative to all issues, including those issues for which he did not receive a penalty.” Id. at 1061. After applying the factors set forth in McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694, this court raised the attorney fee award from $7,000.00 to $12,000.00 rather than to the amount sought, finding that some of the time spent |1sby the claimant’s attorney “extended an otherwise simple issue and should not be counted toward the overall attorney fee.”

“Awards of penalties and attorney’s fees in workers’ compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed.” Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46 (citation omitted). An appellate court reviews the WCJ’s decision to award penalties and attorney fees using the manifest error/clearly wrong standard of review. Ducote v. Louisiana Indus., Inc., 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843. The amount of attorney fees awarded to a claimant by a WCJ will not - be reversed unless we find an abuse of discretion. Kinard v. New Iberia Wastewater Treatment Facility, 12-1393 (La.App. 3 Cir. 4/3/13), 116 So.3d 5.

After applying the McCarroll factors to the matter before us and affording the WCJ the deference owed in determining the attorney fee award, we conclude that the WCJ abused its discretion in awarding Carriere $2,000.00 in attorney fees, and we increase the award to $4,000.00, an amount which we find is reasonable under the circumstances.

Expenses

Finally, Carriere claims that the WCJ erred in fading to award him any of the $781.78 in litigation expenses that his attorney incurred in pursuing this matter. PCMS disagrees, citing Kinard, 116 So.3d at 11, for the proposition that the WCJ “has broad discretion in assessing court costs and can render judgment for costs against any party as it may consider equitable. La.Code Civ.P. art.1920.”

| uHere, even though Carriere was awarded penalties and attorney fees for PCMS’s miscalculation of his compensation rate, he did not prevail on many of the issues presented at trial. Accordingly, we do not find that the WCJ abused its discretion in failing to award him the expenses he incurred in pursuing this matter.

DECREE

The judgment of the WCJ is vacated insofar as it sets out Carriere’s average weekly wage and his weekly indemnity benefits, and this matter is remanded for a redetermination of those amounts. In addition, the judgment is amended to increase the attorney fee award from $2,000.00 to $4,000.00. In all other respects, the judgment is affirmed.

VACATED IN PART, AMENDED IN PART, AFFIRMED AS AMENDED, AND REMANDED.

      . Ms. Artello testified that Ashley was the office manager at PCMS.

      . Louisiana Revised Statutes 13:3732 is entitled "Statements by injured person regarding accident or injury; copies furnished injured person or representative.”

      . In its oral reasons for judgment, the WCJ noted that Carriere had not indicated any problems while sitting in trial for approximately six hours with only a few breaks which the WCJ characterized as "inconsistent with his testimony that he can’t sit for more than a limited time without extreme discomfort."

      . Louisiana Revised Statutes 23:1021(12)(a)(i) provides that: "If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater....”

      . Carriere’s regular hourly rate was $10.50; his overtime hourly rate was $15.75. Thus, if he was not paid seven and one half hours of overtime, he would have been underpaid $39.38 ($15.75 minus $10.50 equals $5.25; $5.25 times 7.5 equals $39,375).

      . "Some of the factors taken into account by the judge in fixing the amount of the fee are the degree^of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case.” McCarroll, 773 So.2d at 700.


author: JOHN D. SAUNDERS, Judge. THIBODEAUX, Chief Judge,

text:
    David GUILLOT v. DOLGENCORP, L.L.C.
    No. 13-587.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 27, 2013.

      Peter J. Wanek, McCranie, Sistrunk, Anzelmo, New Orleans, LA, for Defendant/Appellant, Dolgencorp, L.L.C.
    Cory P. Roy, Attorney at Law, Marks-ville, LA, for Plaintiff/Appellee, David Guillot.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   JOHN D. SAUNDERS, Judge.

11While shopping at a Dollar General store owned and operated by Dolgencorp, L.L.C. in Marksville, Louisiana, David Guillot slipped and fell on a discarded McDonald’s cup, sustaining soft tissue injuries. Following a bench trial on the merits, the trial court found Dolgencorp liable and awarded Mr. Guillot $15,000.00 in general damages and $2,426.45 in special damages. We find that the trial court abused its discretion in the admission of certain deposition testimony. Nevertheless, we uphold the trial court’s judgment, and we affirm.

I.

ISSUES

We shall consider:

(1) whether the trial court abused its discretion in admitting the deposition testimony of the Dollar General assistant manager into evidence in lieu of live testimony;
(2) whether Mr. Guillot proved by a preponderance of the evidence that Dol-gencorp had constructive notice of the McDonald’s cup;
(3) whether the trial court erred in finding that Mr. Guillot carried his burden to prove that the accident caused his alleged injuries; and
(4)whether the trial court erred in awarding Mr. Guillot excessive damages.

II.

FACTS AND PROCEDURAL HISTORY

|2On April 23, 2011, David Guillot was shopping in a Dollar General store in Marksville, Louisiana, when he slipped on a McDonald’s cup and fell in one of the store aisles. Kimberly Ragsdale, the assistant manager of the Dollar General, came to Mr. Guillot’s assistance. Mr. Guil-lot then left the store. He later filed this lawsuit.

At trial, Mr. Guillot served as the only witness on his behalf. He testified that he slipped on the McDonald’s cup that contained a clear liquid and suffered injuries to his lower back, right hip, and right knee. In addition to his testimony, Mr. Guillot submitted into evidence video surveillance footage showing that for the period of roughly two minutes before the incident, no person entered the area where Mr. Guillot fell. The video further showed a plastic bag discarded on the floor in another part of the store for roughly ten minutes during the time of the accident.

At trial, the court admitted into evidence the deposition of Kimberly Ragsdale in lieu of live testimony. It determined that although Ms. Ragsdale lived within the subpoena power of the court, her deposition testimony was limited in nature to her observations of the accident scene and the store’s inspection policies. Furthermore, the court concluded it should be admitted to minimize resulting court costs from issuing a continuance and instanter subpoena.

After denying its motion for involuntary dismissal, the trial court held that Dolgen-corp was solely liable for Mr. Guillot’s fall under La.R.S. 9:2800.6, concluding that a store has a duty to keep its aisles and passageways clear of objects that might cause injury and a patron does not have a duty to watch every step that he or she may take while shopping. The trial court reasoned that there was a McDonald’s cup in the aisle, and given the presence of the neglected plastic bag in another part of the store, the store had constructive notice of the potential hazard. The trial court awarded Mr. Guillot $15,000.00 in general damages and $2,426.45 in special damages.

_b.ni.

LAW AND DISCUSSION

Standards of Review

The decision to admit deposition testimony at trial is discretionary and will not be disturbed upon appeal absent an abuse of discretion. Bruins v. U.S. Fleet Leasing, Inc. 430 So.2d 386 (La.App. 3 Cir.1983); Dickens v. Commercial Union Ins. Co., 99-698 (La.App. 1 Cir. 6/23/00), 762 So.2d 1193. Furthermore, even if the trial court’s evidentiary ruling is erroneous, reversal is not warranted unless the error prejudiced the complainant’s cause. State Farm Mut. Auto. Ins. Co. v. Little, 34,760 (La.App. 2 Cir. 6/20/01), 794 So.2d 927.

With regard to constructive notice, a trial court’s determination of whether a merchant had constructive knowledge of a condition creating an unreasonable risk of harm is a factual finding that may not be set aside absent manifest error. Smith v. Brookshire Grocery Co., 32,619 (La.App. 2 Cir. 1/26/00), 750 So.2d 450. We cannot disturb the trial court’s ruling unless it is unreasonable or clearly wrong under the record. Mart v. Hill, 505 So.2d 1120 (La. 1987).

Admissibility of Ms. Ragsdale’s Deposition Testimony

Dolgencorp argues that the trial court erred in admitting the deposition of Ms. Ragsdale in lieu of live testimony. We agree.

Louisiana Code of Civil Procedure Article 1450, in part, states:
A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(a) That the witness is unavailable;
(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(c) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

Ms. Ragsdale’s deposition was taken for the purpose of discovery, and there was no stipulation by the parties that this deposition could be used at trial in lieu of live testimony. She resided within the subpoena power of the court, and there is no evidence in the record that she was unavailable to testify. As such, Ms. Rags-dale’s deposition may only be admitted if an exceptional circumstance exists as defined under La.Code Civ.P. art. 1450. While the trial court believed the limited nature of Ms. Ragsdale’s testimony combined with a desire to limit court costs amounted to exceptional circumstances, we disagree.

Under Article 1450, an exceptional circumstance must “make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.” La.Code Civ.P. art. 1450(A)(3)(c). Here, the only hurdles to Ms. Ragsdale testifying live are court costs from issuing a continuance and instanter subpoena. While burdensome, court costs do not impede the interest of justice nor do they | ¡^outweigh the value of live witness testimony; they are merely expected and inevitable consequences of litigation. To hold otherwise would amount to eliminating live testimony altogether in favor of depositions to save court costs which flies in the face of Article 1450.

Furthermore, while Ms. Ragsdale’s deposition testimony was limited in scope, it contained discrepancies regarding the inspection times of the store prior to the accident that not only could have been rectified via live testimony but also potentially prejudiced Dolgencorp regarding the court’s determination of constructive notice. Given the ease in which Ms. Rags-dale could have been called into court via instanter subpoena, the highly favored preference of presenting witness testimony orally, and the potential prejudice of the deposition, we find the trial court’s admission of Ms. Ragsdale’s deposition testimony to be an abuse of discretion. As such, we exclude consideration of this testimony in our review of the trial court’s finding of constructive notice. See Maricle v. Cloud, 341 So.2d 29 (La.App. 3 Cir.1976).

Constructive Notice

Dolgencorp contends that the trial court erred in concluding that it had constructive notice of the unreasonable risk of harm presented by the McDonald’s cup under La.R.S. 9:2800.6. We do not agree.

Louisiana Revised Statutes 9:2800.6, in part, provides:
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:
|fi(l) 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 failed 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.

The Louisiana Supreme Court has explained that the constructive notice requirement of La.R.S. 2800.6 includes a mandatory temporal element, such that “[t]he claimant must make a positive showing of the existence of the condition prior to the fall.” White v. Wal-Mart Stores, Inc., 97-393, p. 4 (La.9/9/97), 699 So.2d 1081, 1084. While the supreme court concluded it was unnecessary to show precisely how long the hazard existed, the claimant must show that the period of time is “sufficiently lengthy” such that a merchant should have discovered the hazard. Id.

In proving the temporal element, the plaintiff may rely on circumstantial evidence over direct evidence to show that constructive knowledge can be inferred from the totality of the circumstances. Broussard v. Wal-Mart Stores, Inc., 98-813 (La.App. 3 Cir. 1/20/99), 741 So.2d 65, writ denied, 99-486 (La.4/1/99), 742 So.2d 562. For example, in Broussard, this court relied on circumstantial evidence regarding the size and scope of a dishwash-ing detergent spill to conclude that the merchant had constructive notice of the spill. The court reasoned that the spill |7spread over a considerable period of time given that it was fairly large and elongated. Moreover, given the evidence that this part of the store was unmanned during one of the busiest days of the year, the court found that under the totality of the circumstances the merchant had constructive notice.

In light of the White and Broussard decisions, we agree with the trial court that Mr. Guillot proved that Dolgencorp had constructive notice of the unreasonable risk of harm presented by the McDonald’s cup. Even absent Ms. Rags-dale’s deposition testimony, the evidence in the record supports a finding that a Dol-gencorp had a “sufficiently lengthy” period of time that it should have discovered the hazard. The video surveillance indicated that the cup was on the floor for at least two minutes prior to Mr. Guillot’s accident. This fact, coupled with the ten minutes of video surveillance of a discarded plastic bag before and after the accident in another part of the store, supports the trial court’s findings.

We find this court’s decision, in Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La.3/23/01), 788 So.2d 427, instructive. In Davenport, this court relied on circumstantial evidence of negligent store upkeep to find that the plaintiff had proven the temporal element under La.R.S. 2800.6, even after the actual occurrence of the event. Similarly, here, the circumstantial evidence Mr. Guillot relies upon, a discarded plastic bag, indicates Dolgen-corp’s knowledge of the bag, a hazard, and a general disregard for the safety of it customers from slip and fall hazards. As such, we affirm the trial court’s finding that Dolgencorp had constructive notice of the McDonald’s cup.

Causation

Next, Dolgencorp asserts that the trial court erred in finding that Mr. Guillot proved that the accident caused the injuries he allegedly sustained because Mr. IsGuillot did not present the testimony of a medical doctor expressly stating that the alleged injuries were more probably than not caused by the April 23, 2011 slip and fall. Thus, according to Dolgencorp, the trial court erred as a matter of law.

“Whether an accident caused a person’s injuries is a question of fact which should not be reversed on appeal absent manifest error.” Housley v. Cerise, 579 So.2d 973, 979 (La.1991).

In Louisiana tort cases and other ordinary civil actions, the plaintiff, in general, has the burden of proving every essential element of his case, including the cause-in-fact of damage, by a preponderance of the evidence, not by some artificially created greater standard. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.
... While expert medical evidence is sometimes essential, it is self-evident that, as a general rule, whether the defendant’s fault[ ] was a cause in fact of a plaintiffs personal injury or damage may be proved by other direct or circumstantial evidence.

Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993) (citations omitted).

At trial, Mr. Guillot testified that as a result of the incident, he fell and landed on his right side and sustained a busted lip and injuries to his lower back, right knee, right hip, and right shoulder. Mr. Guil-lot’s testimony that the accident caused his injuries is bolstered by his medical records that were admitted into evidence from Rapides Regional Medical Center, Dr. Bryan C. McCann, and Leglue Physical Medicine Clinic. These medical records indicate that Mr. Guillot visited Dr. McCann on April 27, 2011, and explained that he had fallen at Dollar General on April 23, 2011. He complained of anxiety and pain in his right knee, right hip, and lower back due to the fall to Dr. McCann. Mr. Guillot again treated with Dr. McCann on May 2, 2011, complaining that his right knee was hurting worse daily and his lower back and right hip were still hurting.

|flMr. Guillot testified that due to transportation problems, he was unable to continue seeing Dr. McCann, and, thereafter, reported to the emergency room at Rap-ides Regional Medical Center when the pain continued. At trial, the parties introduced additional medical records indicating additional visits to the Rapides Regional Medical Center emergency room subsequent to the accident. According to the records, Mr. Guillot presented to Rapides Regional Medical Center on May 1, 2011, stating that he had fallen on April 23, 2011, and complaining of pain to his lower back, right knee, and right hip.

Finally, Mr. Guillot testified that between the completion of his treatment with Dr. McCann in May of 2011, and the commencement of his treatment with Leglue Physical Medicine Clinic in March 2012, he continued to experience pain in the aforementioned areas of his body, and, in addition to his treatment with Rapides Regional Medical Center, he treated the pain by taking over-the-counter pain medication such as Aleve and Tylenol.

Given the above, we find that there is ample evidence in the record to support the trial court’s finding that Mr. Guillot proved the April 23, 2011 accident caused his injuries. Accordingly, we find no error by the trial count on this issue.

Damages

Finally, Dolgencorp argues that Mr. Guillot presented no evidence to support a finding that his alleged injuries lasted beyond three weeks, and, as such, the award of $15,000.00 for those injuries was excessive. We do not agree.

In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994) (citations omitted), our supreme court stated:

[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to [, preview the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
... The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Only-after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.

Mr. Guillot has presented testimony that as a result of the April 23, 2011 incident, he has suffered pain in his lower back, right hip, right shoulder, and right knee spanning from April 23, 2011, through the trial date of January 28, 2013, a twenty-one month period. Clearly, the trial court found Mr. Guillot credible, despite Dolgen-corp’s attempts to show otherwise. As we stated above, this testimony is corroborated by the medical records of Dr. McCann and Rapides Regional Medical Center indicating treatment shortly after the incident. Mr. Guillot then cited transportation problems concerning his continued treatment with Dr. McCann and sporadic treatment with Rapides Regional Medical Center. Furthermore, he testified that his pain continued through the period between his last visit to Dr. McCann and the first to Leglue Physical Medicine Clinic, during which he treated at Rapides Regional Medical Center and with over the counter pain medication.

After a thorough review of the record, we find no abuse of discretion by the trial court in awarding Mr. Guillot $15,000.00 for his damages. A reasonable view of the evidence is such that Mr. Guillot suffered pain for twenty-one months, and such an award as given by the trial court is not abusively high.

_Luiv.

CONCLUSION

For the foregoing reasons, we find that the trial court abused its discretion in the admission of certain deposition testimony. Nevertheless, we find that a reasonable view of the evidence exists to support the results reached in the judgment of the trial court, and we affirm. Costs of this appeal are assessed against Dolgencorp, LLC.

AFFIRMED.

THIBODEAUX, Chief Judge, dissenting in part.

THIBODEAUX, Chief Judge,

dissenting in part.

hi agree with the majority that the deposition testimony of Ms. Ragsdale was erroneously admitted. I disagree that the plaintiff met his burden in proving constructive notice under La.R. 9:2800.6 or that the evidence was sufficient to show cause-in-fact of plaintiffs injuries.

In light of the White and Broussard decisions relied upon by the majority, I conclude Mr. Guillot failed to prove that Dolgencorp had constructive notice of the allegedly hazardous McDonald’s cup. Absent Ms. Ragsdale’s deposition testimony, the only evidence in the record regarding the temporal element is the video surveillance indicating the cup was on the floor for roughly two minutes prior to Mr. Guil-lot’s accident. Unlike Broussard, even if the cup was full of water as stated in Mr. Guillot’s testimony, there is no evidence as to the size, state, and scope of a spill that would indicate the cup was there for any more time than the two minutes in the video. While I recognize this was a busy time of year given the Easter season, two minutes, without more, is not a “sufficiently lengthy” time to put a merchant on notice of hazardous conditions. To hold otherwise is unreasonable because it forces a merchant to constantly monitor the 1 ¡.physical state of his place of business rather than engage in the primary goal of selling goods.

Mr. Guillot argues that Dolgencorp had constructive notice given the ten minutes of video surveillance of a discarded plastic bag before and after the accident in another part of the store. The majority relies upon this court’s decision in Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La.3/23/01), 788 So.2d 427, where we held that one may prove constructive notice by introducing circumstantial evidence of the hazardous condition after the actual occurrence of the event. While we recognized that circumstantial evidence of potential hazards can lead to an inference of constructive notice, I find this case distinguishable from the Davenport decision. In Davenport, this court relied on circumstantial evidence of negligent store upkeep in the same location where the actual slip and fall occurred. Further, Davenport involved a summary judgment proceeding where this court concluded that the evidence was sufficient to create a genuine issue of material fact as to constructive notice. We did not determine sufficient proof of the temporal element necessary to establish constructive notice. Similarly, a review of other Louisiana slip and fall cases relying on circumstantial evidence all used evidence that could lead to an inference of constructive notice of the hazard in the specific location of the accident. In contrast, the only circumstantial evidence Mr. Guillot relies upon |Ris a discarded plastic bag in a completely different part of the store. While this evidence indicates knowledge of the bag, this alone cannot lead to an inference of constructive notice of hazards in a different part of the store.

As such, the majority errs in finding that Dolgencorp had constructive notice of the McDonald’s cup.

While the medical records might indicate an injury of some sort, there is no correlative linkage between Mr. Guillot’s injury and his slip and fall. It is somewhat of a stretch to automatically infer, without more, that medical causation exists. Indeed, many of these visits, according to the medical records, were unrelated to Mr. Guillot’s fall. Moreover, the only medical testimony is that of Dr. Henry who opined that plaintiffs injuries are unrelated to this accident. His testimony went unrebutted.

For the foregoing reasons, I respectfully dissent.

      . See Treadaway v. Shoney's, Inc., 93-1688 (La.App. 4 Cir. 2/25/94), 633 So.2d 841 (medical technician rendering aid to plaintiff after fall testified that floor was wet); Oalmann v. K-Mart Corp., 630 So.2d 911, 913 (La.App. 4 Cir.1993), writ denied, 94-244 (La.3/18/94), 634 So.2d 859 (plaintiff proved constructive notice of slippery floors through evidence that it rained prior to the fall); Saucier v. Kugler, Inc., 628 So.2d 1309 (La.App. 3 Cifr.1993) (circumstantial evidence that lemon display was often piled high causing lemons to roll onto the floor sufficed to meet plaintiff's burden); Cobb v. Wal-Mart Stores, Inc., 624 So.2d 5 (La.App. 5 Cir.1993) (constructive notice satisfied through evidence of customers carrying bags of popcorn throughout store, thus risking popcorn being dropped on the floor).