     FILED
   May 29, 2018
   03:37 PM(CT)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
employment with Mr. Midgett contributed more than fifty percent in causing these
injuries. Dr. Terry performed surgery on her left elbow in August. He stated Ms.
Bottoms' condition rendered her totally disabled from August 9 until November 20 and
partially disabled from November 21 until December 26.

       Ms. Bottoms testified she did not work until January 2018 when she went to work
for a different employer. Her current issues are a left elbow that she cannot straighten
completely and frequent swelling. She continues to treat with Dr. Terry and scheduled
to undergo an MRI. Her medical expenses to date have been paid by Tenncare.

       Ms. Bottoms filed a Petition for Benefit Determination (PBD) with the Bureau on
August 3, 2017, and a Expedited Request For Investigation (ERFI) on August 9. During
the course of the Bureau investigation, Mr. Midgett admitted that Ms. Bottoms was an
employee of Midgett Farm Country Restaurant; that he had at least five employees; and
that he did not have workers' compensation insurance. Ms. Bottoms did not testify that
she contacted the Bureau regarding her injury prior to filing the PBD.

                      Findings of Fact and Conclusions of Law

        Ms. Bottoms need not prove every element of her claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, she must present sufficient
evidence that she is likely to prevail at trial. See Tenn. Code Ann. § 50-6-239(d)(1)
(20 17); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

        The uncontroverted evidence establishes that Ms. Bottoms is likely to prove at
trial that Mr. Midgett employed her on May 5, 2017, and that he had at least five
employees. Based on this, Ms. Bottoms is entitled to workers' compensation benefits
from Mr. Midgett for any injury causally related to her employment with him. See Tenn.
Code Ann.§§ 50-6-102(12) and (13).

        In order to prevail on causation, Ms. Bottoms must establish she suffered an
accidental injury that was "caused by a specific incident, or set of incidents, arising
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). The Court finds she is
likely to prove such, and that she duly notified Mr. Midgett of her injury.

       The Court further finds Mr. Midgett did not offer medical treatment, even after
Ms. Bottoms filed a PBD, which compelled her to seek unauthorized treatment with Dr.
Terry. Whether an employee is justified in seeking payment for unauthorized medical
expenses from an employer depends upon the circumstances of each case. Hackney v.
Integrity Staffing Solutions, 2016 TN Wrk. Comp. App. Bd. LEXIS 29, at *8-9 (July 22,
2016).

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       Here, the Court finds the circumstances justified Ms. Bottoms' unauthorized care
by Dr. Terry. Given that Dr. Terry has already provided substantial care for Ms.
Bottoms' work injury, the Court holds that he shall be the authorized doctor for any
additional care made reasonably necessary due to the injury, and Mr. Midgett shall be
obligated to pay for the expenses incurred. "An employer may risk being required to pay
for unauthorized treatment if it does not provide the treatment made reasonably necessary
by the work injury as required by Tennessee Code Annotated section 50-6-204(a)(l)(A)."
See Hackney v. Integrity Staffing Solutions, 2016 TN Wrk. Comp. App. Bd. LEXIS 29, at
*8-9 (July 22, 2016).

       However, as to past unauthorized medical expenses, Ms. Bottoms must still prove
the reasonableness and necessity of those expenses. Russell v. Genesco, Inc., 651 S. W.2d
206, 211 (Tenn. 1983). Given that Ms. Bottoms did not produce any medical records
regarding her surgery or any evidence regarding the actual expenses incurred through Dr.
Terry's care, the Court cannot find that she is likely to prevail on this issue and any claim
for past medical expenses is denied at this time.

       With regard to temporary total disability benefits, Ms. Bottoms must first establish
her compensation rate, which is two-thirds of her average weekly wage with Mr. Midgett.
Tenn. Code Ann. § 50-6-207(1). While Ms. Bottoms did not produce any documentary
evidence regarding her wages, she testified that, at a minimum, she worked forty-five
hours per week at $8.00 per hour. Thus, the Court finds that she is likely to prove at trial
that her compensation rate is at least $240.00

        Ms. Bottoms must then show she is likely to prove: ( 1) a 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). Dr. Terry provided a statement that Ms. Bottoms was temporarily totally disabled
due to her injury from August 9, 2017, until November 20, 2017. Ms. Bottoms testified
that she did not work during this time. Therefore, the Court finds that she is likely to
prevail at a trial and establish entitlement to temporary total disability benefits totaling
$3,565.74.

        However, as to temporary partial disability benefits, the Court cannot find that Ms.
Bottoms is likely to prevail at trial on this issue. In order to receive these benefits, Ms.
Bottoms must establish the difference between what she could have earned in her
partially disabled state and her average weekly rate. Tenn. Code Ann. § 50-6-207(2)(A).
Through Dr. Terry's statement and her testimony regarding her inability to work, Ms.
Bottoms submitted evidence as to the partial disability's duration; however, she did not
provide any proof as to her actual physical restrictions. Further, she did not provide any
evidence that she notified Mr. Midgett of her ability to return to work with restrictions,
and whether Mr. Midgett would not or could not return her to work subject to those

                                             3
restrictions. Thus, the Court finds Ms. Bottoms did not submit sufficient evidence to
establish her likelihood of prevailing on this issue and holds she is not entitled to
temporary partial disability benefits at this time.

        Finally, since Mr. Midgett admitted to not having workers' compensation
insurance at the time of her injury, Ms. Bottoms asked the Bureau to pay any temporary
or medical benefits that are owed pursuant to Tennessee Code Annotated section 50-6-
802(e)(l). Under this statute, the Bureau has discretion to pay limited temporary
disability and medical benefits to employees who have established medical causation 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 I, 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.§ 50-6-80l(d)(l)-(4).

       Unfortunately, Ms. Bottoms meets all the criteria but the last. Her injury occurred
on May 5, 2017. She did not file a PBD until August 3, 2017, approximately ninety days
after her injury, and she did not provide any evidence to establish she notified the Bureau
of her injury any earlier. Therefore, the Court holds Ms. Bottoms is not entitled to seek
benefits from the Bureau under section 50-6-801.

      IT IS, THEREFORE, ORDERED that:

 1. Dr. Roy Terry shall be designated as Ms. Bottoms' authorized physician for her
    work-related injury, and Mr. Midgett shall pay any for any further reasonable and
    necessary medical treatment provided or recommended by Dr. Terry. Mr. Midgett
    is not obligated to pay any past medical expenses at this time.

 2. Mr. Midgett shall pay Ms. Bottoms temporary total disability benefits for the period
    of August 9, 2017, through November 20, 2017, at the compensation rate of$240.00
    for a total of $3,565.74. Ms. Bottoms' request for temporary partial disability
    benefits is denied at this time.

 3. Ms. Bottoms is not eligible to receive benefits from the Uninsured Employer' s Fund
    pursuant to Tennessee Code Annotated section 50-6-801, et seq.


                                            4
     4. This matter is set for a Scheduling Hearing on July 3, 2018, 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 MAY 29, 2018.



                                    Ro ert V. Durham, Judge
                                    Court of Workers' Compensation Claims


                                        APPENDIX

Exhibits:

1.       Ms. Bottoms' Rule 72 Declaration
2.       Request for Investigation Report
3.       Medical Records

Technical Record:

1.       Petition for Benefit Determination
2.       Request for Expedited Hearing
3.       Dispute Certification Notice
4.       Order of Continuance
5.       Order Setting Expedited Hearing
6.       Notice of Expedited Hearing


                              CERTIFICATE OF SERVICE

       I 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 May
29, 2018.

Name                        Certified    Fax       Email   Service sent to:
                             Mail
David Goodman                                       X      dgoodman@forthepeople.com
Employee's Attorney                                        cc: treiley@forthepeople.com
Roy Midgett, Self-             X                           Midgett Farm Country Restaurant
Represented Employer                                       4873 Highway 52 West

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            I Lafayette, TN 3 7083

      /)        )Jv~ -
p.;-~       , Clerk of Court
Court of Wor Kers' Compensation Claims
WC.CourtCierk@tn.gov




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