Trejo v. Canaan Constr., LLC, 52,697-WCA

• Decision Date: 26 June 2019
• Docket Number: No. 52,697-WCA,52,697-WCA
• Citation: 277 So.3d 499
• Parties: Josue TREJO, Plaintiff-Appellee v. CANAAN CONSTRUCTION, LLC, and Bridgefield Casualty Insurance Company, Defendants-Appellants
• Court: Court of Appeal of Louisiana — District of US

277 So.3d 499

Josue TREJO, Plaintiff-Appellee

v.CANAAN CONSTRUCTION, LLC, and Bridgefield Casualty Insurance Company, Defendants-Appellants

No. 52,697-WCA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered June 26, 2019

ANZELMO & CREIGHTON, LLC, By: Donald J. Anzelmo, Monroe, Counsel for Appellants

BRUSCATO LAW FIRM, By: John F. Bruscato, Monroe, Counsel for Appellee

Before WILLIAMS, COX, and STEPHENS, JJ.

STEPHENS, J.

The defendants, Canaan Construction, LLC, and Bridgefield Casualty Insurance Company, appeal from a judgment by a workers' compensation judge ("WCJ") finding that the plaintiff, Josue Trejo, was entitled to temporary total disability benefits, medical benefits, penalties, attorney fees, and costs.For the following reasons, we affirm the WCJ's judgment.

FACTS

This workers' compensation lawsuit stems from the injury of Josue Trejo sustained while working on a construction job for Canaan Construction, LLC("Canaan"), in Ruston, Louisiana, on February 11, 2015.Trejo, a native of Honduras living in Louisiana, does not speak English.He was injured while working when he fell from an eight-foot ladder, hitting his head on concrete and sustaining multiple injuries as a result.Trejo was airlifted by helicopter to University Health in Shreveport and spent one night there.His diagnosis included a fracture of the anterior and posterior frontal sinus, right orbital floor fracture, nondisplaced nasal bone fracture, commotio retinae of the right eye, and a facial laceration.His laceration was sutured, and no surgery was required.Trejo also claimed he injured his arm, wrist, and hip in the fall.He received some followup treatment at University Health on February 20 and March 9, 2015.At the March visit, Trejo complained of periodic headaches and occasional dizziness when bending over.After that, Trejo was treated by physicians in Ruston and Monroe.

Trejo filed a disputed claim for compensation against his employer, Canaan, and its insurer, in which he claimed he could not work.In his petition, Trejo also claimed: no wage benefits had been paid; entitlement to either temporary total disability benefits or supplemental earnings benefits; a refusal of the defendants to authorize/submit evaluation with a medical provider; and, entitlement to penalties, costs, and attorney fees.Canaan answered, admitting that Trejo was temporarily disabled for a period of time following the accident but denying he was permanently disabled or that he sustained an injury resulting in loss of earning capacity.Canaan also claimed that Trejo committed fraud under La.R.S. 23:1208, resulting in forfeiture of his right to all benefits.The specific conduct which would constitute fraud was not stated by Canaan.

On November 3, 2015, Canaan sent Trejo a letter offering to allow him continued employment with the company at his previous wage and offered to make whatever accommodations were required by Trejo's physicians; however, Trejo did not return to work at Canaan.Shortly after Canaan's offer for continued employment, in November 2015, Trejo filed a supplemental and amended petition alleging permanent partial disability and seeking costs, penalties, and attorney fees for Canaan's failure to pay benefits during the time that Trejo had been unable to work.

Ultimately, a trial of the matter commenced on May 4 and 24, and December 1, 2017—after numerous continuances while discovery was conducted and multiple depositions were taken.Following a pretrial conference, the WCJ noted that the parties stipulated to Trejo's employment with Canaan, and Trejo was involved in a work-related accident.Later during the trial, the parties also stipulated that Trejo had not been reimbursed for $400 in out-of-pocket expenses.The issues that were considered at trial included: entitlement to indemnity benefits; entitlement to medical benefits; the nature and extent of Trejo's disability; Trejo's average weekly wage; and, entitlement to an award of penalties and attorney fees.The parties jointly admitted into evidence the ambulance bills, records from University Health, and medical records from two of Trejo's treating physicians, Dr. Michael McCormick and Dr. Lawrence Danna.The parties jointly stipulated that the wage records submitted by Canaan in pretrial discovery were not sufficiently reliable to be considered by the WCJ.

At trial, Cruz Rodriguez testified that he worked with Trejo at Canaan and was present when the accident occurred.¹Rodriguez described picking Trejo up after the accident and there was blood on the spot where Trejo hit the ground.In fact, Trejo told Rodriguez that he"thought his eye fell out."Rodriguez recounted that other employees were present at the site, and they called an ambulance.It was Rodriguez's recollection that Trejo was unconscious after the accident.Rodriguez also testified regarding his own hourly wage and the average number of hours he worked.

Dr. McCormick, a family medicine physician, treated Trejo and testified at trial.He first saw Trejo on April 2, 2015.According to Dr. McCormick, Trejo was accompanied to his appointments by a woman who translated for him.At that visit, Trejo complained of chest pain, shortness of breath, heart racing, nausea, vomiting, pain in the left hand, arm, and leg, and headaches.Trejo reported to Dr. McCormick at that time that he was knocked unconscious as a result of the fall.Dr. McCormick found that Trejo suffered skull and facial fractures and all of his symptoms were related to the accident.On that date, he recommended that Trejo not be released to return to work.

Dr. McCormick followed up with Trejo on April 16, 2015, seeing Trejo for similar complaints as well as neck pain, hip and arm pain, headaches, and depression.Dr. McCormick opined that Trejo sustained a concussion in the accident.Again, Trejo was not released to return to work.

At an office visit on May 7, 2015, Trejo's complaints were consistent with his past complaints.His arm pain had improved, but his hip pain and headaches had not.Dr. McCormick testified he noted in his medical records that the headaches were enough to keep Trejo from working.Again, Trejo was not released to return to work.

On June 8, 2015, Dr. McCormick saw Trejo for dizziness, hip pain, myalgia, headaches, and anxiety disorder.There was no significant improvement in those symptoms.

Finally, at an office visit on July 8, 2015, Trejo denied dizziness, but still complained of daily headaches, which Dr. McCormick characterized in his notes as a "dull ache."He administered a shot of cortisone to Trejo.Physical therapy was discussed.Dr. McCormick ordered a CT scan of Trejo's brain, which did not reveal any acute intracranial findings.Dr. McCormick testified he never released Trejo or told him he could return to any level of work.

On December 30, 2015, Trejo was seen by an ear, nose, and throat specialist, Dr. Danna, who ordered a CT scan of the maxillofacial/sinuses.This did not reveal any significant abnormalities.An MRI of Trejo's brain, also ordered by Dr. Danna, showed "no obvious residuals of closed head injury."

Trejo was referred to a neurologist, Dr. Brian L. Stucki, who saw him for an initial consultation in June 2016.²While evaluating Trejo, Dr. Stucki noted his complaints of chronic headaches, poor memory, mood changes, neck pain, insomnia, dizziness, hip pain, depression, and anxiety.Dr. Stucki stated Trejo had an MRI of the brain in November 2015, which showed a right minimally displaced fracture of the maxillary sinus and orbital floor, a medial displaced fracture of the right medial orbit wall involving the ethmoid sinus and right frontal sinus, and a nondisplaced lateral orbital wall fracture.Based on that, Dr. Stucki diagnosed Trejo with a traumatic brain injury with a skull fracture.Dr. Stucki opined that headaches are commonly associated with traumatic brain injuries.Dr. Stucki wanted a neuropsychiatric evaluation, which was denied.He did not recommend Trejo be released to return to work.

Trejo testified through an interpreter.Trejo related, on the date of the accident, he fell at the jobsite and opened his eyes when he was arriving at the hospital.Trejo had no memory of being in an ambulance and did not remember much about the next day.Trejo contended he was unconscious after the accident and others who were present told him he was "like dead" for approximately 30 minutes.

Trejo's physical complaints were headaches and pain in the hip, back, and neck, which were not improving.He related that Dr. Stucki gave him medicine for the headaches, but the medicine made him drowsy.He denied being able to do any work, and he claimed activity made his headaches worse.Trejo also stated being affected if he went outside in bright sunlight.Trejo testified when he was working at Canaan, he was paid $17 per hour and worked 55 to 75 hours per week.He did not receive overtime for work in excess of 40 hours per week and was paid in cash.

On cross-examination, Trejo said he was unaware that Dr. McCormick's notes mentioned his headaches had gotten better and were a "dull ache."Trejo was also asked about the absence of any complaints of dizziness or memory loss until months after the accident.Notably, the notes of a second interpreter, utilized by the WCJ to assess the accuracy of the trial transcript, show that the interpreter present at trial did not use the proper Spanish word for "dizziness."It is not clear that Trejo ever understood the questions posed.

Trejo was asked about the offer of employment with accommodations made by Canaan in November 2015; he was unaware of the offer and said he did not feel able to work.Trejo denied he had worked anywhere since the accident.

Trejo related that he lives with two brothers and a cousin in a house with Alejandra Fuentes.According to Trejo, Fuentes is employed at Weil Cleaners and works from 7:00 a.m. until 6:00 p.m. Trejo said he occasionally sweeps the house, and...