Teano v. Electrical Const. Co.

• Decision Date: 09 May 2003
• Docket Number: No. 2002 CA 2033., No. 2002 CA 2032
• Citation: 849 So.2d 714
• Parties: Ricardo TEANO v. ELECTRICAL CONSTRUCTION, CO.
• Court: Court of Appeal of Louisiana — District of US

849 So.2d 714

Ricardo TEANO v. ELECTRICAL CONSTRUCTION, CO.

Nos. , .

Court of Appeal of Louisiana, First Circuit.

May 9, 2003.

Pete Lewis, New Orleans, Counsel for Appellant Ricardo Teano.

Max Jones, Jr., John Rabalais, Covington, Counsel for Appellee Electrical Construction, Co.

Before: FOIL, McCLENDON, and KLINE,¹ JJ.

KLINE, J.

This is an appeal from a judgment of the Office of Workers' Compensation (OWC) finding that claimant, Ricardo Teano, violated the provisions of La. R.S. 23:1208, thereby forfeiting his rights to workers' compensation benefits. We affirm.

FACTS AND PROCEDURAL HISTORY

On July 5, 2000, Ricardo Teano, while in the course and scope of his employment with Electrical Construction Co. (ECC), slipped in a ditch and injured his right knee. Teano began receiving workers' compensation in the amount of $367.00 per week. Teano was treated by Dr. James Gosey, an orthopedic surgeon. On July 25, 2000, Gosey performed surgery on Teano's knee. ECC paid for the surgery and provided physical therapy. In October of 2000, Gosey indicated that Teano had reached maximum medical improvement. In November of 2000, after conducting a functional capacity evaluation, Gosey recommended that Teano be placed in a status of light to medium level work and opined that Teano was not going to be able to return to his old job as an electrician. In February of 2001, ECC sent Teano to Stanford McNabb for vocational rehabilitation. McNabb obtained several job leads for Teano, but ECC alleges he did not follow up on those leads. Dr. Gosey, Teano's physician of choice, approved Teano for four out of six jobs recommended by McNabb. However, Teano did not pursue those jobs either. On July 6, 2001, ECC filed a disputed claim for compensation alleging that Teano was not cooperating with the vocational rehabilitation. Teano continued to see Dr. Gosey for follow up visits and Gosey recommended that he see Dr. Denney, a psychiatrist, for depression. Teano filed a disputed claim for compensation on July 30, 2001, and the two cases were consolidated. Teano alleged that ECC had reduced his benefits to SEBS, paid benefits at irregular intervals, and that he was temporarily, totally disabled. Subsequently, Dr. Denney saw Teano on August 16, 2001 and diagnosed Teano with depression. In October of 2001, Dr. Denney opined that Teano was not able to work as a result of his psychiatric condition, which included depression and anxiety, even though, as noted, Dr. Gosey had approved several jobs for Teano.

Subsequently, Teano was examined by several other doctors. On November 14, 2001 he was seen by Dr. Richard Roniger, a psychiatrist chosen by ECC; and on February 1, 2002, Teano was examined by Dr. John Sweeney, an orthopedic surgeon chosen by ECC. Dr. Roniger disagreed with Dr. Denney's opinion that Teano could not return to work. Accordingly, on January 31, 2002, the Office of Workers' Compensation referred Teano to Dr. Harold Ginzburg, a psychiatrist. ECC provided Teano with psychiatric treatment from August 16, 2001 until March of 2002.

ECC eventually learned that Teano had been treated by a Dr. Mathew Horsefield for various problems, including anger, adjustment disorder, anxiety and depression, prior to his work-related accident. On April 3, 2002, Teano's benefits were reduced to supplemental earnings benefits. On May 15, 2002, ECC amended its disputed claim form alleging that Teano violated La. R.S. 23:1208, thus, forfeiting his entitlement to benefits. ECC alleged that Teano stated that he had not been treated for depression, anxiety or other psychological conditions prior to the accident. Teano was questioned by the previously named doctors concerning his medical and family history. However, Teano did not relay any prior problems with anxiety, depression or other psychological conditions prior to the accident to anyone, including the doctors, even when questioned. ECC alleged that medical records from other health care providers showed that Teano suffered from anxiety, depression and other psychological conditions for which he sought treatment before the accident. Records from Global Medical Center indicated such and were presented to Teano on the day of trial.

A trial on the matter was held on April 22, 2002. The OWC judge rendered judgment in favor of ECC. The OWC judge found that Teano violated La. R.S. 23:1208(A) and, thus, forfeited his rights to benefits under La. R.S. 23:1208(E). Teano was also assessed a penalty of $5,000.00 pursuant to La. R.S. 23:1208(D). Teano filed this devolutive appeal.

STANDARD OF REVIEW

Factual findings in a workers' compensation case are subject to the manifest error standard of appellate review. Joseph v. J.E. Merit Constructors, Inc., XXXX-XXXX, p. 5 (La.App. 1st Cir.6/21/02), 822 So.2d 72, 76, writ denied, 2002-2295 (La.4/4/03), 840 So.2d 1201; Marsh Buggies, Inc. v. Ledet, XXXX-XXXX, p. 3 (La. App. 1st Cir.12/28/01), 804 So.2d 908, 910. An appellate court cannot set aside the factual findings of a workers' compensation judge unless there is no reasonable basis for those findings or they are clearly wrong. In addition, when factual findings are based on witness credibility, the appellate court must give great deference to the fact-finder's decision to credit or discredit a witness's testimony. Rhodes v. Terrebonne Parish Sheriff, 2001-2279, p. 3 (La. App. 1st Cir.6/21/02), 822 So.2d 114, 116-117. When there is conflict in the testimony, reasonable credibility evaluations and inferences of fact should not be disturbed on review, even if the appellate court feels that its own evaluations and inferences are as reasonable. Rhodes, 2001-2279 at p. 3, 822 So.2d at 117. Consequently, when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Stobart v. State, Through Dep't of Transp. and Dev., 617 So.2d 880, 883 (La.1993); Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

The hearing officer made the following findings of fact:

The court had the opportunity to observe Mr. Teano's demeanor over the course of several hours of testimony. The court finds him to be less than credible insofar as his testimony was contradicted in numerous respects by evidence introduced at trial. Further, many of his responses on cross-examination were evasive or consisted of "I don't recall."

Mr. Teano was asked on cross-examination if he had been treated by Dr. Mathew Horsefield, his family physician, for anger and depression in May of 1999. He testified he had been treated for anger, but "didn't remember" being treated for depression. In fact, certified medical records and Dr. Horsefield's deposition testimony indicate Mr. Teano had treated with him for anger, depression, anxiety, and adjustment disorder from May 1999 through July 2000.² The medical evidence indicated Mr. Teano's problems were related to his daughter's rape in 1998 and other family problems. During his treatment with Dr. Horsefield, Mr. Teano reported problems with libido, restlessness, and problems with sleeping.

Interrogatories and responses thereto were introduced at trial. Mr. Teano was asked specifically whether he had previously sought treatment for the "injuries, conditions, physical or mental, or the disabilities claimed herein", to which he answered "The claimant does not recall ever having been treated for any injuries to the right knee and/or mental health related problems prior to the subject accident." He was also asked to give the name and address of his family physician and all physicians he had seen in the past 15 years; however, no response was given in the answers to interrogatories.

Mr. Teano was also specifically questioned by Dr. Richard Roniger, ECC'S choice of psychiatrist, about "seeing mental health professionals in the past in his life," to which he responded "I can't remember." Dr. Roniger's diagnosis was adjustment disorder, a diagnosis previously made by Dr. Horsefield in the course of his treatment.

Dr. James Denney, Mr. Teano's treating psychiatrist, testified by deposition that while Mr. Teano supposedly did inform him of his daughter's rape in 1998, Dr. Denney did not record that in his records because "Workmen's (sic) Compensation does not authorize or pay for treatment that is not directly related to the job-related injury." This admission is particularly troubling since one of the issues before the court was whether Mr. Teano's current mental condition is related to his knee injury. Regardless of whether or not Mr. Teano disclosed the details of the rape to Dr. Denney, Dr. Denney's deposition testimony as well as that of Mr. Teano both confirm Mr. Teano never disclosed his prior treatment with Dr. Horsefield.

Certified medical records from Global Medical Center indicate that Mr. Teano presented on March 27, 2000 with complaints with "headaches, nausea, back, neck, shoulders". Mr. Teano testified he went to Global for a "crick" in his back and headaches. The Global records indicate Mr. Teano disclosed prior problems with depression and stress. He also disclosed problems with concentration, and the records do contain a reference to Dr. Matthew (sic) Horsefield.

Dr. Harold Ginsburg (sic) evaluated Mr. Teano for an independent psychiatric medical examination. Dr. Ginsburg testified by deposition that Mr. Teano never disclosed his prior treatment with Dr. Horsefield nor the rape of his daughter. Dr. Ginsburg also testified that Mr. Teano did not have problems with memory, since Mr. Teano was able to recall certain medical conditions both before and after his work-related accident.(footnote omitted)(footnote inserted.)

We have reviewed the record and find these findings accurate.

ADMISSION OF GLOBAL MEDICAL CENTER RECORDS

On April 19, 2002, ECC received medical records from the Global Medical Center, which showed that Teano had been treated for depression and anxiety in the past. However, Teano's counsel was not able to receive...