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Rocha v. Ace Property And Casualty Insurance Company

Court of Appeals of Louisiana, Fifth Circuit

December 18, 2019

TESSALIA ROCHA O/B/O SILVIO CUADRA
v.
ACE PROPERTY AND CASUALTY INSURANCE COMPANY & BRAND ENERGY AND INFRASTRUCTURE SERVICES, INC.

          ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 STATE OF LOUISIANA NO. 18-3156, HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, TESSALIA ROCHA O/B/O SILVIO CUADRA Bruce C. Betzer, Jr. Jennifer Seiler Avallone

          COUNSEL FOR DEFENDANT/APPELLANT, ACE PROPERTY AND CASUALTY INSURANCE COMPANY & BRAND ENERGY AND INFRASTRUCTURE SERVICES, INC. Leslie E. Hodge Mark G. Montiel, Jr.

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst

          JUDE G. GRAVOIS JUDGE

         In this workers' compensation matter, defendants/appellants, Ace Property and Casualty Insurance Company and Brand Energy and Infrastructure Services, Inc., appeal a judgment in favor of claimant Silvio Cuadra, finding that Mr. Cuadra suffered a compensable work-related accident and injury. The workers' compensation judge found Mr. Cuadra to be temporarily totally disabled and ordered the reimbursement/reinstatement of indemnity and medical benefits. Additionally, the court awarded Mr. Cuadra penalties and attorneys' fees against defendants, plus interest and costs. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On March 31, 2012, the date of the accident, Mr. Cuadra was employed by defendant Brand Energy as a laborer. He was 50 years old. Originally from Nicaragua, Mr. Cuadra lived with his wife and children in Miami, Florida. Spanish is Mr. Cuadra's first language, though he understood some English. At the time of the accident, Mr. Cuadra was working at the Valero Refinery in Norco, Louisiana, which was engaged in a major expansion of the plant. He had been on the job approximately four days when the accident occurred.

         Oscar Reyes, Mr. Cuadra's co-worker and foreman, witnessed the accident. Mr. Reyes testified at his deposition that Mr. Cuadra was a scaffolding helper whose job required him to pass material up and down the scaffold. The accident occurred around 4:10 p.m., which was close to quitting time. Mr. Cuadra was on the ground while another co-worker was on the scaffold above him. As they were passing items, the co-worker on the scaffold dropped a steel coupler, which Mr. Reyes described as a solid steel bar or pipe approximately two feet long. According to Mr. Reyes, Mr. Cuadra was crouched and looking down at the time and did not see his co-worker drop the bar or pipe, and thus was unable to avoid getting hit. Mr. Reyes testified that the coupler struck Mr. Cuadra in the head, breaking his hard hat in half. Mr. Reyes' testimony was unclear as to whether Mr. Cuadra lost consciousness, although he said after Mr. Cuadra was hit, he and other workers had to sit Mr. Cuadra up. Mr. Reyes also saw that Mr. Cuadra's head was cut open, noting that Mr. Cuadra bled on his work uniform and shirt. Mr. Reyes helped move Mr. Cuadra to the Brand trailer on site, where they reported to Jose Sardina, the safety officer, and the Brand superintendent, LaBaron Sylvester. Mr. Cuadra's bloodied work clothing was removed and he was given a clean uniform. Mr. Reyes testified that the hard hat was thrown away and Mr. Cuadra was given a new one. While in the trailer, Mr. Cuadra complained of dizziness and head pain. Mr. Reyes testified that no medical attention was given to Mr. Cuadra on the work site other than an ice pack from Mr. Sylvester.[1]

         Mr. Cuadra's roommate, Pablo Molina, testified via deposition that he also worked at the Valero site as a laborer but did not witness the accident.[2] When Mr. Cuadra did not meet him at the end of the shift to ride home together, Mr. Molina was told that Mr. Cuadra had been in an accident. He saw Mr. Cuadra in the Brand trailer after the accident, where someone told him that Mr. Cuadra had been struck in the head with a steel bar. Mr. Molina was told to drive home without Mr. Cuadra, who was brought home later by Mr. Sardina, according to Mr. Cuadra's first deposition.[3] Later that evening at home, Mr. Molina said that Mr. Cuadra complained of being in a lot of pain, and tried to call Mr. Sardina in order to ask for medical care as per instructions he had been given at work, but could not reach him. Mr. Molina brought Mr. Cuadra to the East Jefferson Hospital emergency room that night, where he received approximately eight staples in his scalp to close the wound. He was seen again at East Jefferson Hospital on April 10, 2012 for removal of the staples.

         Mr. Reyes testified that Mr. Cuadra returned to work the next day and for several days after that, but stayed inside the Brand trailer at the direction of Mr. Sardina and Mr. Sylvester, and did not go out to work at the scaffolding site. Mr. Cuadra, at his first deposition in this matter, taken in 2012, confirmed that for the next week, he sat in the trailer and that Mr. Sardina entered his hours for him as if he were working on the scaffolding.

         Because this matter was not filed until 2018, the record is unclear as to exactly when Mr. Cuadra began receiving workers' compensation benefits, but it appears that it was not until approximately seven to eight months after the accident.[4] In the meanwhile, in April of 2012, Mr. Cuadra saw neurologist Dr. Raul Reyes in Kenner, with complaints of dizziness and problems with memory, vision, and balance. Dr. Reyes diagnosed cerebral concussion, cervical spine strain, lumbosacral sprain, thoracic spine sprain, headache, vertigo, and tinnitus (ringing in the ears). Mr. Cuadra also sought treatment with Dr. Raul Grosz, a neurologist, in November of 2012, who reviewed prior diagnostic tests and diagnosed him with closed head trauma, concussion, and depression. At his behest, additional diagnostic tests were performed (CAT scan of the head and neck, MRI of the brain, an EEG, and a BEAR test to measure inner ear function). These tests results were interpreted as "normal," i.e., not showing any objective findings.

         Dr. Grosz recommended that Mr. Cuadra see a psychiatrist. The medical records show that Mr. Cuadra next treated with Dr. Alexander Kushch, a neuropsychologist, who examined him and diagnosed major depressive disorder, concussion, post concessional disorder, closed head trauma, severe psychotic symptoms, and herniation of cervical disc at C5-C7. Dr. Kushch administered some performance based tests, whose results he felt should be viewed with caution, noting that malingering may be an issue.

         Mr. Cuadra treated with various doctors in Florida during this time for serious and progressive cognitive deficits, headaches, neck pain, and depression and anxiety, including Dr. Brad Herskowitz, treating neurologist, and Dr. Safir Azam, treating psychiatrist with experience treating traumatic brain injuries, who started treating Mr. Cuadra in June of 2013.[5]

         Because his cognitive abilities had significantly deteriorated, in 2015, Mr. Cuadra was placed under plenary guardianship by the Circuit Court for Miami-Dade County, Florida, after a panel of three doctors determined that he could not handle his own affairs.[6] His wife, Tessalia V. Rocha, was appointed as his guardian.[7] Also, the record contains information showing that Mr. Cuadra was deemed disabled by the Social Security Administration due to the injuries he sustained in the March 31, 2012 work accident.

         The 1008 Disputed Claim for Compensation form contained in this record dated May 11, 2018 was filed on May 15, 2018, alleging that defendants terminated Mr. Cuadra's benefits on December 4, 2017 based on a "tainted" independent medical examination ("IME"), wherein defendants allegedly had inappropriate contact with the IME doctor, Richard Roniger, in violation of La. R.S. 23:1317.1(E)(2). The 1008 form also alleges that defendants were aware that Mr. Cuadra was under plenary guardianship and had previously been deemed disabled by the Social Security Administration due to the injuries made subject to the 1008 form.

         Trial on the merits of the matter was held on October 15, 2018. Two live witnesses testified: Mr. Cuadra's wife and his adult daughter.[8] Mr. Cuadra did not testify, but his two depositions, from 2012 and 2018 respectively, were entered into evidence. The parties entered into several stipulations and Mr. Cuadra's extensive medical records were introduced as exhibits, as well as the depositions of other witnesses, including medical and fact witnesses. The workers' compensation judge took the matter under advisement and accepted post-trial briefs from the parties. On January 11, 2019, the judge ruled in favor of Mr. Cuadra, finding that he proved a compensable accident and temporary total disability resulting therefrom. In addition to reinstatement of benefits, the court awarded Mr. Cuadra penalties and attorneys' fees.[9] This timely appeal followed.

         On appeal, appellants argue three assignments of error: (1) that Mr. Cuadra failed to prove by a preponderance of the evidence that he suffered a traumatic brain injury; (2) that the trial court erred in applying the Housley presumption, because Mr. Cuadra had displayed similar symptoms prior to the accident, as shown by his medical records; and (3) that the trial court erred in relying on the opinions of Mr. Cuadra's treating doctors rather than giving the opinion of the independent medical examiner more weight.

         STANDARD OF REVIEW

         The determination of whether an employee is entitled to workers' compensation benefits is based on the facts and circumstances of each case, taking into consideration that the laws governing workers' compensation must be construed liberally in favor of the employee. Washington v. Shaw Group., Inc., 10-568 (La.App. 5 Cir. 5/10/11), 68 So.3d 10, 16, writ denied, 11-1211 (La. 9/23/11), 69 So.3d 1159, citing Alfortish v. Roughneck Construction, LLC, 09-870 (La.App. 5 Cir. 5/11/10), 40 So.3d 1004.

         "Appellate review is governed by the manifest error or clearly wrong standard in workers' compensation cases." Villatoro v. Deep South BH & R Enterprises, LLC, 16-307 (La.App. 5 Cir. 12/7/16), 206 So.3d 428, 434, writ denied, 17-0036 (La. 2/10/17) 216 So.3d 45. "An appellate court may only reverse a workers' compensation judge's factual determinations if it finds from the record that a reasonable factual basis for the finding does not exist, or that examination of the entire record reveals that the finding is clearly erroneous. Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the factfinder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review where conflict exists in the testimony." Id. (Internal citations omitted.)

         SECOND ASSIGNMENT OF ERROR[10]

         Trial court erred in applying the Housley presumption

         Appellants argue in their second assignment of error that this Court should conduct a de novo review of the record, rather than applying the manifest error standard of review, because the trial judge committed an error of law that interdicted the judge's findings. This error of ...


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