                                                                                  FILED
                                                                                Jun 13, 2018
                                                                               09:58 AM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                           AT NASHVILLE

GUILLERMO A. RUANOVA,                       )   Docket No. 2016-06-1925
                                            )   Docket No. 2017-06-1668
             Employee,                      )
v.                                          )   State File No. 33552-2015
                                            )   State File No. 69245-2017
WESTERN EXPRESS, INC.,                      )
                                            )
             Employer.                      )   Judge Joshua Davis Baker



           EXPEDITED HEARING ORDER DENYING REQUEST FOR
            TEMPORARY DISABILITY AND MEDICAL BENEFITS


       At an Expedited Hearing on May 23, 2018, Mr. Ruanova requested temporary
disability and medical benefits for two work injuries: a fall from the sleeping berth of a
Western Express truck and a motor vehicle accident that occurred six days later. Western
Express asserted it provided medical treatment for Mr. Ruanova’s injuries, and that no
treatment is currently recommended by a treating physician. It further asserted it owes
Mr. Ruanova no temporary disability benefits. For the reasons below, the Court denies
Mr. Ruanova’s request for temporary disability and medical benefits.

                                    History of Claim

       Mr. Ruanova worked as a trainee driver for Western Express. On March 25, 2015,
while he rested in a truck’s sleeping berth, the driver of the truck slammed on the brake,
causing Mr. Ruanova to fall, injuring his neck and back. Six days later, Mr. Ruanova
alleged his neck and back injuries worsened when another vehicle collided with the back
of his Western Express trailer.

       Western Express provided treatment for Mr. Ruanova’s injuries. Following initial
treatment at Nashville General Hospital, Mr. Ruanova saw Dr. Joseph Benson, who


                                            1
assigned work restrictions and treated Mr. Ruanova for a thoracic and cervical strain. Dr.
Benson then referred Mr. Ruanova to a neurologist.

       Western Express provided a panel of neurologists from which Mr. Ruanova
selected Dr. W. Garrison Strickland. At the first appointment, Dr. Strickland noted Mr.
Ruanova’s complaints of “headache, neck pain, bilateral shoulder pain, left elbow pain,
mid back pain and low back pain.” Dr. Strickland added, “[S]tates he hurts all over.”
The medical record reflects that Mr. Ruanova fully explained both accidents to Dr.
Strickland. Dr. Strickland ordered MRIs and referred Mr. Ruanova to Dr. Mitchell K.
Schwaber to treat his dizziness. After an EEG proved normal, Dr. Schwaber released Mr.
Ruanova from his care without restrictions.

       After diagnostic testing, Dr. Strickland noted “no significant abnormalities” from
the “MRI brain, MRI C-spine, MRI T-spine and MRI L-spine.” On August 31, Dr.
Strickland recommended Mr. Ruanova return to work without restrictions. In November,
he released Mr. Ruanova from his care and indicated he would see him as-needed.

      Almost a year later, Mr. Ruanova’s former counsel wrote Dr. Strickland to ask
whether Mr. Ruanova’s initial injuries “were more likely than not aggravated by his
motor vehicle accident on March 31, 2015.” Dr. Strickland said no.

       In December 2016, Western Express provided another panel of neurologists, and
Mr. Ruanova selected Dr. Steven Graham. Dr. Graham concluded Mr. Ruanova reached
maximum medical improvement, retained no permanent neurological impairment, and
needed no work restrictions. He noted Mr. Ruanova’s complaints of recurrent neck, back
and shoulder pain, but found no “neurological exam abnormalities . . . no loss of motor
strength, no loss of balance, and no loss of sensory function.” Dr. Graham recommended
no additional treatment.

       Mr. Ruanova acknowledged that Western Express paid for all of his medical
treatment and also paid him a higher wage on light duty than he earned pre-injury.
Western Express terminated Mr. Ruanova shortly after Dr. Strickland released him to
work full duty.1

                                Legal Principles and Analysis

      Mr. Ruanova has the burden to prove every element of his claim but need not
prove every element of his claim by a preponderance of the evidence to receive relief at
an expedited hearing. Instead, Mr. Ruanova must present sufficient evidence that he

1
  Western Express’s counsel elicited testimony during cross-examination to explain Mr. Ruanova’s
termination. However, the Court declines to address whether Mr. Ruanova was terminated for cause, as
Dr. Strickland had released him to work full-duty at the time of his termination.

                                                 2
would likely prevail at a hearing on the merits. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       At the hearing, Mr. Ruanova sought compensation for his employer’s negligence
in handling his injuries. However, the exclusive remedies provided by the Workers’
Compensation Law prohibit Mr. Ruanova from recovering damages for negligence from
his employer, Western Express. See Tenn. Code Ann. § 50-6-108(a) (“The rights and
remedies granted to an employee subject to this chapter , on account of personal injury or
death by accident . . . shall exclude all other rights and remedies of the employee[.] ”).

       Western Express argued that Mr. Ruanova’s March 31 injury is barred by the
statute of limitations. However, it did not raise that issue in the Dispute Certification
Notice. “Unless permission has been granted by the assigned workers’ compensation
judge, only issues that have been certified by a workers compensation mediator within a
dispute certification notice may be presented . . . for adjudication.” Id. at § 50-6-
239(b)(1). Thus, the Court will not address the statute of limitations defense.

       An employer is required to provide injured workers “such medical and surgical
treatment . . . as ordered by the attending physician . . . made reasonably necessary by
accident.” Id. at § 50-6-204(a)(1)(A). Likewise, employees are required to “accept the
medical benefits afforded under this section” provided that the “employee has suffered an
injury and expressed a need for medical care” and selected a treating physician from the
employer’s panel. Id. at § 50-6-204(a)(3)(A)(i). When the selected physician refuses to
see the employee for his continuing symptoms, the employer is required to provide a new
authorized treating physician. See Limberakis v. Pro-Tech Sec., Inc., 2017 TN Wrk.
Comp. App. Bd. LEXIS 53 (Sept. 12, 2017).

       Here, the Court finds Western Express provided Mr. Ruanova with the benefits
that the law entitled him to receive. It provided him with several panels for treatment of
his injury, and the treating doctors all treated and released Mr. Ruanova without
assigning restrictions or impairment ratings. The doctors also did not instruct him to
return for additional care. Accordingly, while Mr. Ruanova has the right to reasonable
and necessary medical treatment for his injuries, no physician has recommended
additional treatment at this time. The Court declines to substitute its judgment
concerning Mr. Ruanova’s need for additional care for that of trained physicians.
Therefore, Mr. Ruanova’s request for additional medical treatment is denied.

        As for temporary disability benefits, Mr. Ruanova acknowledged earning more
money while on restricted duty than he earned at the time of his injury. He received pay
at this greater rate until his termination, which occurred after Dr. Strickland released him
to return to full-duty work. Thus, Western Express paid him more money in wages
during his period of disability than the lesser amount required under the Workers’


                                             3
Compensation Law. Therefore, Mr. Ruanova’s request for temporary disability benefits
is denied.

It is ORDERED as follows:

      1. Mr. Ruanova’s request for temporary disability and medical benefits is denied
         at this time.

      2. This matter is set for a Scheduling Hearing on July 23, 2018, at 10:30 a.m.
         (CDT). The parties or their counsel must call (615) 741-2113 or (855) 874-
         0474 toll-free to participate. Failure to call may result in determination of
         issues without that party’s participation.

      3. Unless interlocutory appeal of the Expedited Hearing Order is filed,
         compliance with this Order must occur no later than seven business days from
         the date of entry of this Order as required by Tennessee Code Annotated
         section 50-6-239(d)(3). The Insurer or Self-Insured Employer must submit
         confirmation of compliance with this Order to the Bureau by email to
         WCCompliance.Program@tn.gov no later than the seventh business day after
         entry of this Order. Failure to submit the necessary confirmation within the
         period of compliance may result in a penalty assessment for non-compliance.
         For questions regarding compliance, please contact the Workers’
         Compensation Compliance Unit via email WCCompliance.Program@tn.gov.


ENTERED JUNE 13, 2018.



                                       ______________________________________
                                       Judge Joshua Davis Baker
                                       Court of Workers’ Compensation Claims




                                          4
                                      APPENDIX

Exhibits:

   1.   Affidavit of Guillermo Ruanova
   2.   Medical Records
   3.   Causation Letter from Dr. Strickland
   4.   First Reports of Injury
   5.   Panel Selection Forms
   6.   Driver’s Comments
   7.   Wage Statement
   8.   Employment Application

Technical Record:

   1. Petitions for Benefit Determination
   2. Dispute Certification Notices
   3. Requests for Expedited Hearing




                                               5
                             CERTIFICATE OF SERVICE

        I certify that a true and correct copy of this Expedited Hearing Order was sent to
the following recipients by the following methods of service on June ___,13th 2018

 Name                      Certified     Fax       Email   Service sent to:
                            Mail
 Guillermo A. Ruanova,                              X      natcheztraceins.@comcast.net
 Self-represented
 Employee
 Rachel Hogan,                                      X      rhogan@ortalekelley.com;
 Employer’s Attorney                                       dsaulters@ortalekelley.com




                                          ______________________________________
                                          PENNY SHRUM, COURT CLERK
                                          wc.courtclerk@tn.gov




                                               6
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements should include: (1) 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.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
   Filed Date Stamp Here                     EXPEDITED HEARING NOTICE OF APPEAL
                                                  Tennessee Division of Workers' Compensation
                                                                                                     Docket#: - - - -- -- - --
                                                      www.tn.go v/labor-wfd/wcomp.shtm l
                                                                                                     State File #/YR: - - -- - - --
                                                             wc.courtclerk@tn.gov
                                                                1-800-332-2667                       RFA#: _ _ _ _ _ _ _ _____ _

                                                                                                     Date of Injury: - - - -- - - - -
                                                                                                     SSN: _______ _ ______ __




                      Employee


                      Employer and Carrier

          Notice
          Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
                                    [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at _ __

           -~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
           [List the date(s) the order(s) was filed in the court clerk's office]

          Judge___________________________________________

          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal:




          Additional Information
          Type of Case [Check the most appropriate item]

                             D   Temporary disability benefits
                             D   Medical benefits for current injury
                             D   Medical benefits under prior order issued by the Court

          List of Parties
          Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
          Address:. _______________________ ______________ ___________

          Party's Phone:.____________________________ Email: _________________________

          Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -

          Attorney's Address:. _ _ _ _ _~~-~~~~----~~----                                             Phone:
          Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
          Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __

                                        *Attach an additional sheet for each additional Appellant*

LB-1099    rev.4/15                                        Page 1 of 2                                                     RDA 11082
Employee Name: - - - -- - - -- - - -              SF#: _ _ _ _ __ _ _ _ _ DO l: _ __             _ __




Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee



Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __

Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:

Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

                       * Attach an additional sheet for each additional Appellee *


CERTIFICATE OF SERVICE

I,                                             certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the              day of__, 20_ .



[Signature of appellant or attorney for appellant]



LB-1099   rev.4/1S                                Page 2 of 2                              RDA 11082
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667


                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:


10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
