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Trejo v. Canaan Construction, LLC

Court of Appeals of Louisiana, Second Circuit

June 26, 2019

JOSUE TREJO Plaintiff-Appellee

          Appealed from the Office of Workers' Compensation, District 1-East Parish of Ouachita, Louisiana Trial Court No. 15-02895 Brenza Irving Jones Workers' Compensation Judge.

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

          BRUSCATO LAW FIRM, By: John F. Bruscato, 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.


         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.[1] Rodriguez 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.[2] While 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 his cousin and brothers help unload Fuentes' car. They pay someone to do yard work or his brother does it. Trejo said he watered the yard in the morning about once a month. He claimed bending over hurt his hip and made him nauseous. Trejo testified he does not go into the front yard much because it is too sunny. He claimed he has had trouble sleeping at night because of headaches. He noted he had not driven since the accident and walks to the store, which is located next door to his house.

         Fuentes testified she and Trejo have resided together for three years. She related that since the accident, Trejo has complained of pain in his arms with numbness and tingling, but his most common complaint was headaches which seemed to be affected by the weather. She said, while working for Canaan, Trejo brought home $1, 100 to $1, 200 per week, but he never earned less than $900 per week. Each work day, Fuentes related that Trejo left the house at 6:00 a.m. and arrived home between 6:30 p.m. and 8:00 p.m. Fuentes testified Trejo has not worked anywhere since the accident and denied he worked at Weil Cleaners with her.

         In support of their fraud claim, the defendants presented testimony of two private investigators hired during the course of the litigation in an attempt to establish that (1) Trejo worked at Weil Cleaners and, (2) he did work around his residence he claimed he could not do. Nechanta Alexander was one of those private investigators utilized by defendants, and she was employed by Woodall and Broome. She described surveillance of Trejo on March 29 and 30, 2017, when she videoed his activities. On the first day, she stated Trejo left his residence at 6:52 a.m. and arrived at Weil Cleaners at 6:58 a.m. The vehicle left the employee parking lot at 10:52 a.m. Alexander claimed she called the business at 8:37 a.m. and confirmed Trejo was inside; however, she did not testify who gave her that information. The following day, Alexander claimed Trejo left the residence at 6:41 a.m., with other subjects, and went to the cleaners. He left at 1:17 p.m. with a female and two other males. He arrived home soon thereafter and was observed on the front porch of his house. Alexander claimed she called the cleaners on that day also and confirmed Trejo was inside-again, with no evidence regarding the person she spoke with. Alexander was asked on cross- examination if she had ever been convicted of a crime involving fraud or dishonesty or issuing worthless checks. She stated she had not.

         Ashley David Nichols, another private investigator also with Woodall and Broome, testified he conducted surveillance on Trejo on April 10-12, 2017, and on April 28-29, 2017. His surveillance tapes and still photographs showed Trejo outside looking up at the sun, bending over in the front yard, pulling weeds, and sweeping dirt out of the front door of the house. Nichols observed Trejo on several days watering the yard. Once Trejo was observed digging in the dirt with a stick and unloading items from a vehicle, as well as walking to the grocery store next door to his house several times. Nichols claimed on April 28, he saw Trejo get out of a vehicle at the cleaners at 12:41 p.m.

         In response to the investigators' testimony, the WCJ summoned Fuentes into the courtroom and warned her of the penalties for committing perjury. The WCJ then asked Fuentes about her testimony that Trejo was not working at the cleaners. Fuentes insisted Trejo had not worked at the cleaners and reiterated he had gone there with her twice, but stayed in the vehicle because no one but employees were allowed in the work area. She said Trejo went into the break room "to see what we were doing."

         The trial was recessed and continued until May 24, 2017. On that date, Alexander testified again about her video surveillance of Trejo on March 29 and 30, 2017, in which she claimed he went to the cleaners and stayed there several hours each day. She also specifically asserted she verified Trejo was inside the business on those days.

         Alexander was asked if she had ever pled guilty to or been convicted of a crime or if she was ever on probation. She denied any convictions. However, she was presented with the transcript and record of criminal proceedings against her in Georgia involving fraud and identity theft. Eventually, the WCJ ordered this evidence stricken from the record. Nichols again testified, but this time by telephone. He stated Alexander was a reliable person and there was no dishonest reporting.

         Fuentes was called back to the stand on cross-examination. She was questioned about Trejo's lawyer using her to translate in order to facilitate communication with Trejo regarding the case. There was an issue of whether this constituted a breach of the rule of sequestration since Fuentes was also a witness in this matter. Fuentes denied that Trejo's lawyer discussed the testimony of other witnesses with her.

         It was also pointed out that, in her deposition and at trial, Fuentes testified Trejo had never gone to the cleaners with her. When questioned by the WCJ, she stated Trejo had gone with her to the cleaners twice. Fuentes was asked if she had discussed this matter with Donnie Weil, the owner of the cleaners. She said she had asked whether Weil had surveillance video of the business on the dates Trejo was alleged to be working there.

         David Donnie Weil, the owner of Weil Cleaners and Fuentes' employer, appeared and stated Trejo did not work for him at the cleaners. Weil presented his video surveillance footage from the business on the days Alexander claimed Trejo was working there. The videos showed on March 29, 2017, Fuentes arrived at the cleaners alone at 6:55 a.m. On March 30, 2017, Fuentes was seen on video arriving at work between 6:46 and 6:53 a.m. Again, she was alone. According to Weil, the business has two locations. Later that morning, Fuentes went to one location, picked up clothes and took them to the other location. She left the cleaners at 1:16 p.m. Weil said he looked at a video from other cameras and never saw Trejo enter any of the buildings belonging to the cleaners. The video did not show Trejo was in the vehicle with Fuentes on either day.

         Weil said he supplied his video footage based on the dates and times furnished by Trejo's counsel. He did not supply any video from inside the business. Weil admitted that Fuentes made him aware that it was alleged in court Trejo had been working at the cleaners, which was the impetus for reviewing his video footage to see if Trejo had been at the business. Weil stated he did review some footage from inside the business, which was not produced at trial; however, none of the footage showed that Trejo was present at the cleaners. After Weil's testimony, the case was continued until December 1, 2017.

         When court reconvened in December 2017, issues regarding discrepancies in the prior translation of the questions posed to Trejo and his answers were discussed. Trejo sought to clarify that he can carry things which are not too heavy and the doctor told him if he was more active, he would feel better. He still insisted he could not work due to pain in his head and sensitivity to sunlight.

         The WCJ read its judgment and reasons for judgment into the record on February 8, 2018. The WCJ found Trejo was unable to return to work and was entitled to indemnity benefits, which the WCJ based on the medical opinions of the treating physicians, Dr. McCormick and Dr. Stucki. The WCJ noted, according to Trejo's unrefuted testimony, he earned $17 an hour and worked at least 65 hours per week; based on that, the WCJ determined Trejo should receive temporary total disability indemnity benefits in the amount of $630 per week, beginning on February 11, 2015, and continuing until he is released to return to work. Additionally, Trejo was found to be entitled to ...

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