                                                                                                        FILED
                                                                                                      Jun e 2 1,,2017

                                                                                                       TNCOURTOF
                                                                                               Vi 'OR.KIRS' COMFE.N.SATION
                                                                                                           ,CLAIMS

                                                                                                        Time 8 :lfi tU.J:
              TENNESSEE BUREAU OF WORKERS' COMPENSATION
             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT COOKEVILLE

MICHAEL COITRONE,                                      )    Docket No.: 2016-04-0305
         Employee,                                     )
v.                                                     )    State File No.: 79982-2016
                                                       )
R01;JERT FULTON D/B/A/ BOB'S                           )    Judge Robert Durham
CONSTRUCTION,                                          )
           Uninsured Employer.                         )
                                                       )


        EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


        This matter came before the undersigned Workers' Compensation Judge on June
9, 2017, upon the Request for Expedited Hearing (REH) filed by Michael Coitrone. 1 Mr.
Coitrone filed the Request to determine whether Robert Fulton, d/b/a Bob's Construction,
is obligated to provide workers' compensation benefits for his July 15, 2016 work injury,
and if so, to what extent he is entitled to medical benefits and temporary disability
benefits. The Court holds the evidence submitted by Mr. Coitrone is sufficient to
establish he is likely to prevail in proving he was Mr. Fulton's employee when he
sustained a work-related injury on July 15, 2016; thus, he is entitled to reimbursement for
emergent care expenses as well as a panel of physicians from which he may choose an
authorized treating physician. However, the Court further finds Mr. Coitrone did not
provide sufficient evidence at this time to establish entitlement to temporary disability
benefits.

                                            History of Claim

      According to his testimony, Mr. Fulton hired Mr. Coitrone to work as a carpenter
beginning on July 14, 2016, at $15.00 per hour based on a fifty-hour workweek. Mr.
Fulton picked him up from a McDonald's restaurant on the 14th and drove him to a
worksite located in Putnam County. 2 Mr. Coitrone noticed Mr. Fulton talking to another

1
  Mr. Fulton did not attend the Expedited Hearing and did not respond in any way to the Notice of Expedited
Hearing sent to his listed address.
2
  Since Mr. Coitrone had moved to Tennessee only a few weeks before and only worked for Mr. Fulton for two days
gentleman about the project but could not say whether he was the homeowner or a
general contractor.

        The following day, Mr. Fulton again picked Mr. Coitrone up from McDonald's
and drove him to the worksite. While working on the second floor of a garage, Mr.
Coitrone fell through the floor and landed on concrete several feet below, causing injuries
to his head, right wrist, and low back. Mr. Fulton and a co-worker assisted Mr. Coitrone
to Cookeville Regional Medical Center's emergency room.

       According to CRMC records, Mr. Coitrone suffered a laceration to the back of his
head that required stapling as well as a right wrist sprain and severe back pain. Mr.
Coitrone also testified he suffered an injury to his left shoulder. He underwent x-rays of
his right wrist, thoracic spine, and chest, as well as a CT scan of his head, none of which
revealed any abnormal findings. An x-ray of his lumbar spine revealed compression
fractures at L3 and L4, which were "probably acute." Dr. William Gailmard, the
emergency room physician, called for a consultation with a neurosurgeon, but Mr.
Coitrone chose to be discharged before the consult occurred. Dr. Gailmard counseled
Mr. Coitrone to seek outpatient follow-up with a neurosurgeon, prescribed pain
medication, and discharged him from care. (Ex. 1.)

       Mr. Coitrone did not submit any additional medical records, although he did
introduce several medical bills, which he testified were incurred as a result of the
accident. 3 Expenses incurred on July 15 for CRMC's emergency room, Dr. Gailford's
services, and Cumberland Imaging Services total $3,589.84. (Exs. 8, 9, 10.)

        Mr. Coitrone attempted to obtain workers' compensation benefits from Mr.
Fulton, but when he discovered Mr. Fulton did not have workers' compensation
insurance, he contacted the Bureau of Workers' Compensation Ombudsman's office for
assistance. On September 9, 2016, a Request for Investigation to determine whether Mr.
Fulton was required to comply with workers' compensation law was filed with the
Bureau of Workers' Compensation. The Investigation Report determined that Mr. Fulton
found the job; controlled the right of termination; provided transportation to and from the
worksite, thus setting the work hours; controlled the right to hire helpers; and furnished
all tools and equipment. (Ex. 6.)

       Mr. Coitrone testified that he has not been able to work since the date of the
accident. However, the Bureau investigation report included several text messages
between Mr. Coitrone and Mr. Fulton from late July to early August 2016 in which Mr.
Coitrone asked Mr. Fulton for work. (Ex. 4.) Mr. Coitrone also testified that he
continues to suffer from back pain as well as cluster headaches, which he attributes to his

before his injury, he could not identify the exact location of the worksite.
3
  Some of the bills included services provided at CRMC's emergency room on June 23, 2016, and were not included
in the calculation stated above.

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accident.

                       Findings of Fact and Conclusions of Law

       As in all workers' compensation actions, Mr. Coitrone, as the claimant, has the
burden of proof on the essential elements of his claim. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However,
since this is an expedited hearing, he only has to come forward with sufficient evidence
from which the Court can determine he is likely to prevail at a hearing on the merits in
order to meet his burden. McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       With regard to Mr. Coitrone's employment status with Mr. Fulton, the Court finds
the undisputed evidence establishes Mr. Coitrone is likely to prove he was Mr. Fulton's
employee, as opposed to an independent contractor, at the time of the injury on July 15,
2016. Tennessee Code Annotated section 50-6-102(12)(D)(i) (2016) sets forth the
following factors for making this determination as follows:

       (a)    The right to control the conduct of the work;
       (b)    The right of termination;
       (c)    The method of payment;
       (d)    The freedom to select and hire helpers;
       (e)    The furnishing of tools and equipment;
       (f)    Self-scheduling of working hours; and
       (g)    The freedom to offer services to other entities.

Mr. Coitrone testified he was Mr. Fulton's employee; he further testified he was to be
paid on hourly basis and that he was driven to and from the jobsite by Mr. Fulton, who
dictated his schedule. Furthermore, the UEF Investigation Report determined that Mr.
Fulton found the job, controlled the hiring of helpers, and provided tools and equipment
for the construction project. Mr. Fulton did not appear at the hearing to provide testimony
to the contrary. As a result, the Court finds at this stage that Mr. Coitrone provided
sufficient evidence to show he is likely to prove he was an employee of Mr. Fulton at the
time of his work-related injury.

        Since Mr. Coitrone was Mr. Fulton's employee, the Court further finds that Mr.
Fulton was subject to the Workers' Compensation Law, given that construction
contractors must provide benefits to injured workers even if they only have one
employee. Tennessee Code Annotated section 50-6-902(a) (2016). Thus, Mr. Coitrone is
entitled to workers' compensation benefits for any injury causally related to his
employment with Mr. Fulton.

      In order to prevail on causation, Mr. Coitrone must establish he suffered an

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accidental injury that was "caused by a specific incident, or set of incidents, ansmg
primarily out of and in the course and scope of employment, and is identifiable by time
and place of occurrence." Tenn. Code Ann. § 50-6-102(14)(A) (2016). The undisputed
testimony is that, while working on a construction project for Mr. Fulton, he fell several
feet through a hole in the second floor and sustained injuries to his head, left shoulder,
low back, and right wrist. Thus, the Court finds Mr. Coitrone is likely to establish he
suffered compensable work-related injuries on July 15, 2016, and is entitled to workers'
compensation benefits.

        However, Mr. Coitrone is still obligated to establish entitlement to the medical
expenses he incurred for treatment of the injuries sustained on July 15, 2016. Whether
an employee is justified in seeking payment for unauthorized medical expenses from an
employer depends upon the circumstances of each case. Buchanan v. Mission Ins. Co.,
713 S.W.2d 654, 656 (Tenn. 1986). According to the uncontroverted evidence, Mr.
Coitrone sustained a substantial laceration to the back of his head, probably compression
fractures in his lumbar spine and a right wrist sprain due to his fall. Mr. Coitrone
suffered significant bleeding and intense pain immediately following the injury. The
Court finds the emergent care sought by Mr. Coitrone and provided at CRMC was
justified under the circumstances and holds Mr. Fulton is obligated to pay the submitted
July 15, 2016 expenses, which according to the evidence total $3,589.84.

       Furthermore, the emergent care physician, Dr. Gailmard, recommended Mr.
Coitrone be evaluated by a neurosurgeon for potential follow-up care for his lumbar spine
compression fractures. The Court holds Mr. Coitrone is entitled to such care and orders
Mr. Fulton to provide a panel of neurosurgeons pursuant to Tennessee Code Annotated
section 50-6-204(a)(3)(A)(i) (2016) from which Mr. Coitrone may select an authorized
physician to provide reasonable and necessary medical care for injuries related to his fall.

        Finally, with regard to temporary disability benefits, Mr. Coitrone must prove (1)
disability from working as the result of a compensable injury; (2) a causal connection
between the injury and the inability to work; and (3) the duration of the period of
disability. See Shepherd v. Haren Canst. Co., Inc., et al., 2016 TN Wrk. Comp. App. Bd.
LEXIS 15, at * 13 (Mar. 30, 2016). While Mr. Coitrone testified he has not been able to
work since the accident, such testimony must be supported by expert medical opinion
making a causal connection between his inability to work and his injury and establishing
the duration of such disability. !d. Mr. Coitrone has yet to offer any evidence in this
regard. Thus, the Court finds he has not provided sufficient evidence to establish his
likelihood of prevailing on this issue and holds he is not entitled to temporary disability
benefits at this time.

       Although this Court holds Mr. Fulton must provide Mr. Coitrone with past and
ongoing medical benefits, it is unclear whether payment will be forthcoming since Mr.
Fulton did not have workers' compensation insurance at the time of the accident. Under

                                             4
Tennessee Code Annotated section 50-6-802(e)(l) (2015), however, the Bureau has
discretion to pay limited temporary disability and medical benefits to employees who
have established medical causation of their injury and meet the following criteria:

      (1) The employee worked for an employer who failed to carry workers'
          compensation insurance;
      (2) The employee suffered an injury primarily arising in the course and
          scope of employment after July 1, 2015;
      (3) The employee was a Tennessee resident on the date of the injury; and
      (4) The employee provided notice to the Bureau of the injury and the
          employer's failure to provide workers' compensation insurance no more
          than sixty days after the injury occurred.

Tenn. Code Ann.§ 50-6-801(d)(l)-(4) (2015).

      The Court adopts the findings contained in the Bureau's Investigation Report,
admitted into evidence without objection as Exhibit 6. Based on the testimony and
evidence introduced at the Expedited Hearing, the Court finds:

   (1) Mr. Fulton, as a construction contractor and Mr. Coitrone's employer, failed to
       carry workers' compensation insurance;
   (2) Mr. Coitrone suffered an injury arising primarily out of and in the course and
       scope of employment after July 1, 2015;
   (3) Mr. Coitrone was a Tennessee resident on July 15, 2016, the date of the injury;
   (4) Mr. Coitrone provided notice to the Bureau of the injury and Mr. Fulton's failure
       to provide workers' compensation insurance within sixty days after the mJury
       occurred; and
   (5) Mr. Coitrone is entitled to past and on-going medical benefits.

      IT IS, THEREFORE, ORDERED that:

 1. Mr. Fulton shall pay the reasonable and necessary medical expenses Mr. Coitrone
    incurred on July 15, 2016, as a result of his work-related injury in the amount of
    $3,589.84.

 2. Mr. Fulton shall provide a panel of neurosurgeons from which Mr. Coitrone may
    select an authorized treating physician to provide reasonable and necessary
    treatment for his work-related injuries in accordance with Tennessee Code
    Annotated section 50-6-204(a)(l)(A) (2016).

 3. Mr. Coitrone is eligible to receive medical benefits from the Uninsured Employer's
    Fund pursuant to Tennessee Code Annotated section 50-6-801, et seq. The clerk
    shall forward a copy of this order to the Administrator for consideration of payment.

                                           5
     4. Mr. Coitrone's request for temporary disability benefits is denied at this time.

     5. This matter is set for a Scheduling Hearing on July 24, 2017, at 10:00 a.m. Central
        Time. The parties must call 615-253-0010 or toll-free at 855-689-9049 to
        participate in the Hearing. Failure to call in may result in a determination of the
        issues without your further participation.

ENTERED THIS THE...zt_fttDAY OF JUNE, 2017.



                               ~m,Judge
                                      Court of Workers' Compensation Claims


                                          APPENDIX

Exhibits:

1.        Medical Records
2.        Mr. Coitrone's affidavit
3.        Bill from CRMC
4.        Texts between Mr. Coitrone and Mr. Fulton
5.        Discharge Note from CRMC
6.        UEF Investigation Forms
7.        Bill from CRMC for June 16, 2016 visit
8.        Bill from Volunteer Medical Group
9.        Bill from Cumberland Imaging Assoc.
10.       Bill summary from CRMC

Technical Record:

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




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                               CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order
 Granting Benefits was sent to the following recipients by the following methods of
 service on this the _th day of June, 2017.

Name               Certified   Via   Fax        Via     Email Address
                   Mail        Fax   Number     Email

Michael Coitrone      X                             X   392 B Dry Valley Road
                                                        Cookeville, TN 3 8506
                                                        mcoitrone(a).aol.com
Robert Fulton         X                             X   Bob's Construction
                                                        290 Country Meadows Lane
                                                        Cookeville, TN 38501




                                              Pe ny Sh   , Clerk of Court
                                              Court of orkers' Compensation Claims
                                              WC.CourtClerk@tn.gov




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