                                                                                                                 FILED
                                                                                                             December 9, 2015
                                                                                                                ncomn oF
                                                                                                          WORKERS' CO:\IPE:'iSATIO:'i
                                                                                                                 CLADIS

                                                                                                                Time: 1:54 PM




              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT MEMPHIS

Jose Gonzalez,                                             )    Docket No.: 2015-08-0050
            Employee,                                      )
v.                                                         )    State File Number: 85596-2014
The Troxel Co.,                                            )
            Employer,                                      )    Judge Jim Umsted
And                                                        )
Great American Alliance Ins. Co.,                          )
            Insurance Carrier.                             )


        EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


       This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the employee, Jose Gonzalez, pursuant to
Tennessee Code Annotated section 50-6-239 (2014). Mr. Gonzalez seeks medical and
temporary disability benefits for a lower back and abdominal injury. The employer, The
Troxel Co., denied compensability of Mr. Gonzalez's claim. The central legal issues are
whether Mr. Gonzalez provided adequate notice of his alleged injury to Troxel and
whether the alleged injury is causally-related to Mr. Gonzalez's employment. For the
reasons set forth below, the Court finds that Mr. Gonzalez is not entitled to the requested
benefits. 1

                                               History of Claim

       Mr. Gonzalez is a thirty-two-year-old resident of Benton County, Mississippi. He
alleged an injury to his lower back and abdomen on September 8, 2014, while emptying a
dump pan at work. According to Mr. Gonzalez, he reported his injury to his supervisor.
However, Troxel refuted this contention and ultimately denied the claim.

      Mr. Gonzalez filed a Petition for Benefit Determination seeking medical and
temporary disability benefits. The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice. Mr.
1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

                                                          1
Gonzalez filed a Request for Expedited Hearing, and this Court heard the matter on
November 18, 2015. At the Expedited Hearing, Mr. Gonzalez asserted he sustained a
work-related injury, gave proper notice, and that his claim should be deemed
compensable. Troxel countered that Mr. Gonzalez failed to give proper notice of his
injury as required by statute and his claim should be denied.

                              Findings of Fact and Conclusions of Law

        The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); 2 Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element
of his or her claim by a preponderance of the evidence in order to obtain relief at an
expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27,
20 15). At an expedited hearing, an employee has the burden to come forward with
sufficient evidence from which the trial court can determine that the employee is likely to
prevail at a hearing on the merits. !d.

       The First Report of Injury indicates that Mr. Gonzalez reported on October 28,
2014, that he was emptying a dump pan and experienced lower back and upper
abdominal pain. Mr. Gonzalez testified through a state-certified interpreter. He testified
he wants reimbursement of past medical expenses and an award of future medical
benefits. He also requested temporary disability benefits.

       He testified that when the accident occurred, he told his supervisor that his
stomach hurt and he needed to go to the doctor. He testified that one or two of his friends
were present when he was injured, they asked what happened, and he told them. These
friends did not testify.

      Larry Dulaney, Mr. Gonzalez's supervisor, testified that Mr. Gonzalez was a
machine operator for Troxel. He recalled having a conversation with Mr. Gonzalez on
September 8, 2014 and that Mr. Gonzalez did not look well. Mr. Gonzalez said he was

2
  The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July 1, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

                                                          2
having stomach trouble, which he thought was an illness. Mr. Dulaney recommended
that he go to a doctor. Mr. Dulaney testified that Mr. Gonzalez did not mention a work-
related injury on September 8, 2014, and did not request to file a workers' compensation
claim. Mr. Gonzalez continued working for Troxel from September 8, 2014, to October
28, 2014, and, according to Mr. Dulaney, did not complain of a work-related injury
during that time. The Court finds Mr. Dulaney's testimony more persuasive and finds
Mr. Gonzalez did not provide adequate notice of his alleged injury within thirty days as
required by Tennessee Code Annotated section 50-6-201(a)(1) (2014).

        Furthermore, for injuries on or after July 1, 2014, an employee must show that he
suffered an accidental injury caused by an incident, or specific set of incidents, arising
primarily out of and in the course and scope of employment, and identifiable by time and
place of occurrence. Tenn. Code Ann. § 50-6-102(13)(A) (2014). "Arising primarily out
of and in the course and scope of employment" requires a showing, to a reasonable
degree of medical certainty, that the injury causing disablement or the need for medical
treatment contributed more than 50 percent considering all causes. Tenn. Code Ann. §
50-6-102(13)(C) (2014). "Shown to a reasonable degree of medical certainty" means
that, in the opinion of the treating physician, it is more likely than not considering all
causes. Tenn. Code Ann.§ 50-6-102(13)(D) (2014).

        A review of the medical evidence submitted indicates that Mr. Gonzalez was
diagnosed with back pain and an inguinal hernia. However, there is no history provided
regarding the causation of these conditions. Moreover, no physician has opined that the
injuries arose primarily out of employment. Therefore, Mr. Gonzalez has not come
forward with sufficient evidence from which this Court can conclude that he is likely to
prevail at a hearing on the merits. His request for medical and temporary benefits is
denied at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Gonzalez's claim against Troxel and its workers' compensation carrier for the
      requested medical and temporary disability benefits is denied at this time.

   2. This matter is set for an Initial (Scheduling) Hearing on January 20, 2016, at 10:00
      a.m. Central time.

      ENTERED this the 9th day of December, 2015.



                                  Judge Jim Umsted
                                  Court of Workers' Compensation Claims


                                            3
Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Jim Umsted, Court of
Workers' Compensation Claims. You must call 615-532-9550 or toll-free at 866-
943-0014 to participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.


Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of
      Indigency in accordance with this section shall result in dismissal of the
      appeal.

   5. The parties, having the responsibility of ensuring a complete record on appeal,
      may request, from the Court Clerk, the audio recording of the hearing for the
      purpose of having a transcript prepared by a licensed court reporter and filing it
      with the Court Clerk within ten calendar days of the filing of the Expedited

                                            4
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers' Compensation
   Claims and must be approved by the workers' compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant's
   position statement. All position statements pertaining to an appeal of an
   interlocutory order should include: (I) a statement summarizing the facts of the
   case from the evidence admitted during the expedited hearing; (2) a statement
   summarizing the disposition of the case as a result of the expedited hearing; (3) a
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.




                                         5
                                     APPENDIX

Exhibits:
   1. Affidavit of Jose Gonzalez;
   2. Form C-20 Employer's First Report of Work Injury or Illness;
   3. Form C-41 Wage Statement;
   4. Job description for a Class 1000 Recut Machine Operator;
   5. Mileage Reimbursement information;
   6. Medical bill from Methodist Healthcare dated November 4, 2014;
   7. Medical bill from Hawkins Family Medicine dated January 8, 2015;
   8. Medical bill from Surgery Consultants of Oxford dated January 6, 2015;
   9. Medical bill from Alliance Healthcare System dated November 21, 2014;
   10. Medical bill from McKnight Clinic dated November 14, 20 14;
   11. Medical records from Hawkins Family Medicine dated between September 8,
       2014, and October 24, 2014;
   12. Work status slips and discharge records from Surgery Consultants of Oxford dated
       between October 21, 2014 and December 8, 2014;
   13. Work status report from Oxford Urology Associates dated October 20, 2014; and
   14.Discharge instructions from Baptist Memorial Hospital dated November 5, 2014.

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




                                           6
                            CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 9th day of
December, 2015.


Name                        Certified Via       Via      Service sent to:
                            Mail      Fax       Email
Jose Gonzalez                                      X     556 Hwy. 7
                                                         Lamar, MS 38642
Ryan Sarr,                                         X     rsarr@morganakins.com
Employer's Counsel




                                            7
