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
BRUSCATO LAW FIRM, By: John F. Bruscato, Counsel for
WILLIAMS, COX, and STEPHENS, JJ.
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.
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.
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.
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.
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.
trial, Cruz Rodriguez testified that he worked with Trejo at
Canaan and was present when the accident
occurred. 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.
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.
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.
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.
8, 2015, Dr. McCormick saw Trejo for dizziness, hip pain,
myalgia, headaches, and anxiety disorder. There was no
significant improvement in those symptoms.
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.
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
was referred to a neurologist, Dr. Brian L. Stucki, who saw
him for an initial consultation in June 2016. 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.
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.
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
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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
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.
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.
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