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.
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Stephen J. Windhorst
G. GRAVOIS JUDGE
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.
AND PROCEDURAL HISTORY
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.
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.
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. 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. 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.
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.
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. 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
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.
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.
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. His wife, Tessalia V. Rocha, was appointed
as his guardian. 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.
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.
on the merits of the matter was held on October 15, 2018. Two
live witnesses testified: Mr. Cuadra's wife and his adult
daughter. 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. This timely appeal followed.
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.
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
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.)
ASSIGNMENT OF ERROR
court erred in applying the Housley presumption
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 ...