Eleazar Rivera Salgado Versus Tri-Parish Roofing & Home Improvements

ELEAZAR RIVERA SALGADO NO. 19-CA-407

VERSUS FIFTH CIRCUIT

TRI-PARISH ROOFING & HOME COURT OF APPEAL
IMPROVEMENTS
STATE OF LOUISIANA

ON APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION,
DISTRICT 7
STATE OF LOUISIANA
NO. 17-6294
HONORABLE SHANNON BRUNO BISHOP, JUDGE PRESIDING

May 27, 2020

ROBERT A. CHAISSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Hans J. Liljeberg

AFFIRMED
RAC
MEJ
HJL

COUNSEL FOR PLAINTIFF/APPELLEE,
ELEAZAR RIVERA SALGADO
J. Casey Cowley
Pamela C. McLendon
Ana Mafalda Morgado Rodrigues

COUNSEL FOR DEFENDANT/APPELLANT,
TRI-PARISH ROOFING & HOME IMPROVEMENTS
Laurie W. Maschek

CHAISSON, J.

In this workers’ compensation case arising from a construction-site accident,

employer Tri-Parish Roofing and Home Improvement, LLC (“Tri-Parish”), appeals

a June 13, 2019 judgment of the Office of Workers’ Compensation rendered in

favor of the claimant, Eleazar Rivera Salgado. For the following reasons, we

affirm the judgment.

FACTS & PROCEDURAL HISTORY

On October 5, 2017, Mr. Salgado filed a disputed claim for compensation

with the Office of Workers’ Compensation wherein he alleged that, on August 23,

2017, while employed as a roofer for Tri-Parish, he fell while descending a ladder.

Other workers on-site witnessed the accident. Mr. Salgado remained at an

apartment near the construction site provided by Tri-Parish for three days, until

August 26, 2017, when he was taken to University Medical Center where he was

diagnosed with a distal tibial fracture of his left ankle and given a boot cast and

crutches before being discharged. Tri-Parish did not provide any assistance or

compensation at that time.

In its answer to the disputed claim for compensation, Tri-Parish denied all of

Mr. Salgado’s allegations, and in particular denied that Mr. Salgado was ever

employed by Tri-Parish or that he was injured. Tri-Parish also claimed that it had

no knowledge of Mr. Salgado’s claim and had no knowledge of Mr. Salgado’s

identity before the disputed claim for compensation was filed.

Following a March 18, 2019 trial on the merits, during which the court heard

testimony from both Mr. Salgado and James Dinger, the owner of Tri-Parish, the

court issued a judgment wherein it found: Mr. Salgado met his burden to show that

he was an employee of Tri-Parish at the time of the work accident; Mr. Salgado did

in fact sustain an on-the-job injury on August 23, 2017; Mr. Salgado sustained

injuries related to his work accident; and, Mr. Salgado was unable to work as a

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result of injuries sustained in the work accident. In addition to ordering Tri-Parish

to pay temporary total disability (TTD) benefits and medical bills and expenses,

the judge also assessed penalties in the amount of $8,000 for Tri-Parish’s arbitrary

and capricious conduct in its failure to pay benefits or medical expenses and failure

to authorize medical care.

On appeal, Tri-Parish raises the following assignments of error:

1. The trial court erred when it determined that Tri-Parish was the
direct employer of Mr. Salgado.

2. The trial court erred when it ruled that Mr. Salgado sustained his
burden of proof regarding employment status, disability, and
entitlement to benefits.

3. The trial court erred when it awarded unreasonable penalties and
attorney’s fees.

DISCUSSION

We consider first Tri-Parish’s argument that the trial court erred when it

determined the existence of an employment relationship between Mr. Salgado and

Tri-Parish. The finding of such a relationship is a question of fact which is subject

to the manifest error standard of review upon appeal. Villatoro v. Deep S. 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). However, Tri-Parish argues that the trial court’s

factual determination was the result of legal error, and therefore this court should

apply a de novo standard of review rather than the manifest error standard of

review. See MacFarlane v. Schneider Nat. Bulk Carriers, Inc., 07-1386 (La. App.

4 Cir. 4/30/08), 984 So.2d 185, 188.

Tri-Parish argues that there was no employment relationship between Tri-

Parish and Mr. Salgado, but rather that Mr. Salgado was an independent contractor

under the four part test set forth in Alexander v. J. E. Hixson & Sons Funeral

Home, 44 So.2d 487, 488 (La. App. 1st Cir. 1950), which states that selection and

engagement, payment of wages, power of dismissal, and power of control are

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evidentiary factors for a court to consider when determining the right to control in

an employment relationship. Tri-Parish, however, fails to acknowledge La. R.S.

23:1044, the provision of the Workers’ Compensation Act which creates a

rebuttable presumption of employee status for any person rendering service for

another in any trades, businesses or occupations covered by the Act. This statutory

presumption is the sole statutory provision on the subject of what constitutes an

employer-employee relationship. Hillman v. Comm-Care, Inc., 01-1140 (La.

1/15/02), 805 So.2d 1157, 1161. An alleged employer can rebut this presumption

by either (i) establishing that the services were not pursuant to any trade, business,

or occupation, or (ii) establishing that the individual was performing services but

doing so as an independent contractor. Id. The factors articulated in the Alexander

test are illustrative but not controlling, and the trial court must consider the totality

of the circumstances in determining the nature of the employment relationship. Id.

The trial judge was correct in expressly relying on the presumption contained in

La. R.S. 23:1044 and therefore her determination that there existed an employment

relationship between Tri-Parish and Mr. Salgado must be examined under the

manifest error standard of review.

It is well settled that a court of appeal may not set aside a trial court’s

findings of fact in the absence of manifest error, or unless it is clearly wrong, and

where there is a conflict in the testimony, reasonable evaluations of credibility and

reasonable inferences of fact should not be disturbed upon review. Glob. Constr.

& Equip., L.L.C. v. Rathborne Properties, L.L.C., 18-169 (La. App. 5 Cir.

5/29/19), 274 So.3d 837, (citing Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989)).

At trial, the trial judge considered the written affidavit of Mr. Salgado stating that

he was employed by Tri-Parish on August 23, 2017, and was injured on the job

that day, that he was given a Tri-Parish roofing shirt to wear while working, and

19-CA-407 3

that he was paid in cash by Tri-Parish. The judge also heard live testimony from

Mr. Salgado and Mr. Dinger.

Mr. Salgado testified that he was paid $100 a day in cash to work six days a

week as a roofer on a construction site in Alexandria by Daniel Saguesteumi, who

was handed the money by Mr. Dinger, the owner of Tri-Parish, and who was

known on the construction site as “Steven.” A taxi was sent to bring Mr. Salgado

and other workers from New Orleans to an apartment in Alexandria where they

stayed a few weeks for the duration of the job. Mr. Dinger and Mr. Saguesteumi

were present at the apartment when Mr. Salgado arrived. They gave Mr. Salgado

and other workers t-shirts with the Tri-Parish logo to wear while working. Mr.

Dinger drove Mr. Salgado and the other workers from the apartment to the jobsite

in a company car marked with Tri-Parish on the side. Mr. Salgado saw Mr. Dinger

bring materials to the jobsite; also, on the day of the accident, he bought everyone

on the jobsite hamburgers. Mr. Salgado testified that he fell from a ladder on the

jobsite and that Mr. Dinger was present at the jobsite when the accident occurred.

Mr. Salgado requested to be taken to the hospital, but was told he had just a little

injury and that he would be fine. Mr. Salgado waited in pain at the jobsite without

medical care for hours while the other employees finished their job before being

taken back to the apartment. He stayed in the apartment room, abandoned, for

three days with no food or pain medication until his sister arranged a ride for him

back to New Orleans on August 26th. He went straight to University Medical

Center where he was x-rayed and shown images of two fractures in his left leg

before placing the leg in a cast, which remained on for about five months. Mr.

Salgado testified that he went to the doctor a few times in the next few months. He

was referred to an orthopedic specialist, but never went to see the specialist

because he did not have the money. He did not work the entire five months his leg

was in a cast, and he testified to continuing pain following the removal of the cast.

19-CA-407 4

He eventually worked again as a painter a few months after the removal of his cast,

and he testified at the time of the trial that he was currently working in

construction.

Mr. Dinger testified that he recognized Mr. Salgado from one of his jobsites

as an employee of Mr. Saguesteumi, who Mr. Dinger hired as a subcontractor for

Tri-Parish. Mr. Dinger wrote checks to Mr. Saguesteumi. He did not sign a

contract with Mr. Saguesteumi.1 Mr. Dinger was present at the jobsite and

recognized Mr. Salgado as the man he saw on the ground on the day of the injury.

Mr. Dinger required his subcontractors to wear company t-shirts while on the

jobsite for advertisement and he did not allow anyone else to advertise on his

jobsites. Mr. Dinger found out after the accident that he did not have workers’

compensation insurance. He testified that he saw Mr. Saguesteumi speaking to an

injured Mr. Salgado at the jobsite, but Mr. Salgado was not taken to the hospital

and the workers finished out the rest of the day. Mr. Dinger testified that he set up

the apartment for Mr. Saguesteumi. Mr. Dinger has not hired Mr. Saguesteumi

since 2017 and does not have his phone number.

Also entered into evidence were medical records from University Medical

Center indicating that on August 26, 2017, Mr. Salgado was admitted for

emergency care and, after x-rays, was diagnosed with a fractured tibia and placed

in a cast. Medical records from another healthcare provider, LA Health Solutions,

indicate that Mr. Salgado was again examined and found to have a tibial fracture,

and the treating physician recommended that he do no work until cleared by an

orthopedist. That physician wrote a referral for an orthopedic evaluation, but the

evaluation required a $500 deposit for initial consultation and evaluation.

1
No documentary evidence of the relationship between Mr. Dinger and Mr. Saguesteumi was introduced
at trial.

19-CA-407 5

We find that the evidence in the record supports the trial court’s factual

finding that Mr. Salgado was employed by Tri-Parish, and that Tri-Parish failed to

overcome the presumption of employment. Though Mr. Dinger claimed that Mr.

Salgado was an employee of Mr. Saguesteumi, who was in turn a subcontractor for

Tri-Parish, no documentary evidence of such a relationship was introduced, and the

trial judge did not find Mr. Dinger’s testimony regarding the subcontractor

relationship credible in light of the other evidence presented. This assignment of

error is without merit.

We turn next to Tri-Parish’s second assignment of error concerning whether

Mr. Salgado met his burden of proof regarding his employment status, his

disability, and his entitlement to benefits. In a workers’ compensation case, the

employee bears the burden of proving by a preponderance of the evidence that an

accident occurred, it occurred in the course and scope of his employment, the

accident caused his injury, and the injury caused his disability. Miken Specialties

v. Abarca, 16-231 (La. App. 5 Cir. 12/7/16), 209 So.3d 268, 272. A worker’s

testimony alone may be sufficient to discharge this burden of proof in situations

where no other evidence discredits or casts serious doubt upon the worker’s

version of the incident, and the worker’s testimony is corroborated by the

circumstances following the alleged incident. Bruno v. Harbert Int’l Inc., 593

So.2d 357, 361 (La. 1992). Such corroboration may be provided by medical

evidence. Id. The trial court’s determinations as to whether the worker’s

testimony is credible and whether the worker has discharged his or her burden of

proof are factual determinations not to be disturbed on review unless clearly wrong

or absent a showing of manifest error. Id.

Mr. Salgado testified that he was working for Tri-Parish on August 23, 2017,

as a roofer at a construction site when he fell from a ladder and was injured. The

medical records from University Medical Center indicate that Mr. Salgado told

19-CA-407 6

doctors there he injured his left ankle when he fell from a ladder. The medical

records from LA Health Systems indicate that the treating physician there believed

Mr. Salgado’s left ankle injury to be consistent with and caused by the reported fall

from a ladder. Mr. Salgado testified that he was placed in a cast and unable to

work for at least five months; the medical records state he was placed in a cast and

was told by at least one physician not to work until cleared by an orthopedist. Mr.

Dinger appears to have chiefly contested only Mr. Salgado’s status as an

employee, while his own testimony seems to corroborate Mr. Salgado’s story of

being injured on the jobsite, including the testimony by Mr. Dinger that he

recognized Mr. Salgado from the jobsite and was aware of an accident on-site that

day. We find no manifest error in the trial court’s factual findings in this regard.

This assignment of error is without merit.

In its final assignment of error, Tri-Parish raises as error the trial court’s

award of penalties and attorney’s fees. Awards of penalties and attorney’s fees in

workers’ compensation cases are essentially penal in nature, being imposed to

discourage indifference and undesirable conduct by employers and insurers.

Stretzinger v. Claims Mgmt., Inc., 19-168 (La. App. 5 Cir. 12/11/19), 285 So.3d

591, 599 (citing Williams v. Rush Masonry, Inc., 98-2271 (La. 6/29/99), 737 So.2d

41, 46). The workers’ compensation judge has great discretion in the award of

penalties and attorney’s fees and such discretion will not be disturbed on appeal

unless clearly wrong. Villatoro, 206 So.3d at 437. La. R.S. 23:1201 imposes a

twofold continuing obligation on the employer: (1) to pay all compensation and

medical benefits due, and (2) to pay for compensation and medical benefits within

the time limit specified. Stretzinger, 285 So.3d at 600. An employer may make

multiple errors in this regard and be subject to two or more claims under La. R.S.

23:1201(F). Id. In those instances where a claim is not reasonably controverted or

if nonpayment results from conditions under the control of the employer, allowing

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for multiple penalties addresses the recalcitrant employer and encourages

employers and their workers’ compensation insurers to honor their continuing

obligation to the injured worker. Id. In order to reasonably controvert a claim, the

employer must have some valid reason or evidence upon which to base the denial

of benefits. Tri-Parish does not dispute that it has not paid any of Mr. Salgado’s

medical bills, has not authorized any medical care, and has not investigated the

claim. If the trial court credited Mr. Salgado’s testimony that he asked to be taken

to the hospital upon being injured, only to be refused and left in pain for days while

workers were instructed to continue working at the jobsite, this is certainly the kind

of indifference and undesirable conduct by an employer that penalties are meant to

discourage. Additionally, in his initial response to the claim for compensation, Mr.

Dinger claimed to have no knowledge of Mr. Salgado or the accident, an assertion

that was directly contradicted by his own testimony on the stand in favor of a more

nuanced argument concerning employment status. The trial court found that Tri-

Parish provided no valid reason for the denial of benefits and acted arbitrarily and

capriciously in the denial of Mr. Salgado’s claim. We find no error in this ruling,

and affirm that portion of the judgment.

Finally, Tri-Parish argues for the first time in this appeal that the trial court’s

judgment is indeterminate in that it specifies that Tri-Parish shall pay Mr. Salgado

TTD benefits from the date of the accident through such time as he was released

from an orthopedist or when he returned to work voluntarily. Mr. Salgado testified

that he voluntarily returned to work a few months after the removal of his cast and

that, as of the date of the trial in March 2019, he had returned to work in

construction. We find no merit to Tri-Parish’s assertion that the trial court’s

judgment is indeterminate.

19-CA-407 8

CONCLUSION

For the foregoing reasons, we find no merit to Tri-Parish’s assignments of

error and therefore affirm the judgment of the trial court in Mr. Salgado’s favor.

All costs of this appeal are assessed to Tri-Parish.

AFFIRMED

19-CA-407 9

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 27, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-407
E-NOTIFIED
OFFICE OF WORKERS' COMPENSATION, DISTRICT 7 (CLERK)
HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE)
ANA MAFALDA MORGADO RODRIGUES
(APPELLEE)

MAILED
LAURIE W. MASCHEK (ATTORNEY) J. CASEY COWLEY (ATTORNEY)
1350 GAUSE BOULEVARD WEST PAMELA C. MCLENDON (ATTORNEY)
SLIDELL, LA 70460 620 NORTH CARROLLTON AVENUE
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