                                                                                   FILED

                                                                               TN COURIOF
                                                                          '"ORKIRS' COl.IP . S"'\.TION
                                                                                    ct.mrs
                                                                                  Time 12 :13 PM
            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT KINGSPORT

AUGUSTIN GALINDO (HURTADO},                 ) Docket No.: 2016-02-0223
         Employee,                          )
v.                                          ) State File No.: 3199-2016
NETO'S DRYWALL, LLC,                        )
         Self-Insured Employer.             ) Judge Pamela B. Johnson


       EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
                       (Decision on the Record)


        This matter came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by Augustin Galindo. Neto's Drywall, LLC did not
file a Response. The Court found it needed no additional information to determine
whether Mr. Galindo is likely to prevail at a hearing on the merits and elected to decide
the issues upon a review of the written materials and without an evidentiary hearing. The
Court issued a Docketing Notice on April 13, 2017, listing the documents to be
considered. The Court gave Mr. Galindo and N eto' s Drywall until April 25, 2017, to file
objections and/or position statements. Neither Mr. Galindo nor Neto's Drywall filed
objections or position statements.

       The central legal issue is whether Mr. Galindo is likely to prevail at a hearing on
the merits on entitlement to medical and temporary total disability benefits. For the
reasons set forth below, the Court holds Mr. Galindo came forward with sufficient
evidence demonstrating he is likely to prevail at a hearing on the merits. Accordingly,
this Court concludes Mr. Galindo is entitled to the requested benefits.

                                    History of Claim

      A review of the written materials revealed the following facts. Mr. Galindo is a
twenty-eight-year-old resident of Washington County, Tennessee. Ernesto Reyes Moto,
owner ofNeto's Drywall, employed Mr. Galindo as a drywall installer.



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       On February 3, 2016, while installing drywall at a Neto's Drywall jobsite, Mr.
Galindo fell from a ladder, landed on the side of a bathtub, and sustained injury to his
head and right side. At the time of the incident, Mr. Galindo stated he called out for help,
but no one was around. Due to the immediate onset of pain, Mr. Galindo called his
brother, who was working at the same jobsite, for help. Mr. Galindo's brother
transported Mr. Galindo to Johnson City Medical Center for emergent care. The hospital
listed his chief complaint as "fall from ladder." Following various diagnostic and
laboratory testing, the attending physician, Dr. Garik T. Misenar, diagnosed a chest
contusion and discharged Mr. Galindo with instructions to remain off work for two days.
Mr. Galindo received a bill from Johnson City Medical Center for $10,144.00 for his
February 3 admission.

        The following day, Shawn Jones completed an incident report. The report listed
Mr. Galindo's supervisor as Gerardo Galindo and documented details of Mr. Galindo's
fall from a stepladder onto a bathtub with injury to the right side of his rib cage. The
incident reported listed Mr. Galindo's supervisor as Gerardo Galindo. It is unclear from
the record whether Gerardo Galindo is Augustin Galindo's brother, who transported him
to the hospital. Mr. Galindo returned to work on light duty on February 8. Neto's
Drywall paid Mr. Galindo for the day of the incident and the two days he remained off
work following the incident.

       Mr. Galindo filed a Petition for Benefit Determination (PBD) on May 2, 2016,
seeking workers' compensation benefits for an injury sustained to his rib cage on
February 3. The PBD noted Neto's Drywall did not have workers' compensation
insurance coverage. The parties did not resolve the disputed issues through mediation, so
the Mediator issued a Dispute Certification Notice (DCN) on July 15. Following a Show
Cause Hearing, Mr. Galindo filed a Request for Expedited Hearing (REH), seeking
payment of his medical bills.

        Because Neto's Drywall did not carry workers' compensation insurance, the
Bureau received an Expedited Request for Investigation. The investigator noted Mr.
Galindo suffered a February 3, 2016 injury, primarily within the course and scope of his
employment for Neto's Drywall, which was uninsured since January 13, 2015. The
investigator additionally noted Mr. Galindo notified the Bureau of the injury and Neto's
Drywall's failure to secure workers' compensation insurance coverage when he filed his
PBD on May 2, 2016. After interviewing Mr. Galindo and Mr. Reyes, the investigator
confirmed the details of Mr. Galindo's work incident, medical treatment, report of injury,
and subsequent return to work. The investigator further noted: Neto's Drywall
determines the scope of the work and the work schedule; Mr. Galindo did not have the
right of termination or the freedom to select and hire helpers; Neto's Drywall paid Mr.
Galindo in cash but did not provide the tools for the work; and there was no freedom to
offer services to other entities.


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                        Findings of Fact and Conclusions of Law

       In order to grant Mr. Galindo the relief he seeks, the Court must apply the
following legal principles. Mr. Galindo bears the burden of proof on all elements of his
workers' compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2016). However, he
need not prove every element of his claim by a preponderance of the evidence in order to
obtain relief at an Expedited Hearing. McCord v. Advantage Human Resourcing, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7- 9 (Mar. 27, 2015). Instead, at an Expedited
Hearing, Mr. Galindo has the burden to come forward with sufficient evidence from
which this Court can determine he is likely to prevail at a hearing on·the merits. !d.

                                 Employment Relationship

       In order to grant benefits to Mr. Galindo, the Court must first determine whether
an employment relationship existed between the parties. The Workers' Compensation
Law sets forth certain factors that the Court must consider in determining whether an
employment relationship exists. The factors include: the right to control the conduct of
the work, the right of termination, the method of payment, the freedom to select and hire
helpers, the furnishing of tools and equipment, self-scheduling of working hours, and the
freedom to offer services to other entities. Tenn. Code Ann.§ 50-6-102(12)(D)(i) (2016).

        The investigator's report revealed Neto's Drywall determined the scope of the
work and the work schedule; Mr. Galindo did not have the right of termination or the
freedom to select and hire helpers; Neto's Drywall paid Mr. Galindo in cash but did not
provide the tools for the work; and there was no freedom to offer services to other
entities. Based on the Bureau's report, the Court concludes Mr. Galindo came forward
with sufficient evidence demonstrating he is likely to prevail at a hearing on the merits in
establishing he was an employee ofNeto's Drywall.

                                           Injury

       After establishing an employment relationship existed, the Court must next
determine whether Mr. Galindo sustained an injury as defined by the Workers'
Compensation Law. An injury is defined as "an injury by accident ... arising primarily
out of and in the course and scope of employment that causes ... the need for medical
treatment." Tenn. Code Ann. § 50-6-102(14). Further, an injury is "accidental" only if
caused by a specific incident, or set of incidents, arising primarily out of and in the course
and scope of employment. Tenn. Code Ann. § 50-6-102(14)(A).

      Here, Mr. Reyes told the Bureau investigator that Mr. Galindo was installing
drywall when he fell off the ladder on February 3, 2016. Both Mr. Galindo and Mr.
Reyes described in detail how the injury occurred. Again, based on the statements of Mr.
Reyes and Mr. Galindo along with Mr. Galindo's affidavit, the Court holds Mr. Galindo

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came forward with sufficient evidence demonstrating he is likely to prevail at a hearing
on the merits that he sustained an injury arising primarily out of and in the course and
scope of his employment.

                                    Medical Benefits

       Turning to the requested medical benefits, the Workers' Compensation Law
provides, "The employer or the employer's agent shall furnish, free of charge to the
employee, such medical and surgical treatment . . . made reasonably necessary by
accident as defined in this chapter." Tenn. Code Ann. § 50-6-204(a)(1)(A) (2016); see
also !d. at 50-6-204(b)(1). Further, "The injured employee shall accept the medical
benefits afforded ... provided that in any case when the employee has suffered an injury
and expressed a need for medical care, the employer shall designate a group of three (3)
or more independent reputable physicians, surgeons, chiropractors or specialty practice
groups if available in the injured employee's community ... from which the injured
employee shall select one (1) to be the treating physician." !d. at 50-6-204(a)(3).
Conversely, an employer who elects to deny a claim runs the risk that it will be held
responsible for medical benefits obtained from a medical provider of the employee's
choice and/or that it may be subject to penalties for failure to provide a panel of
physicians and/or benefits in a timely manner. McCord, 2015 TN Wrk. Comp App Bd.
LEXIS at* 10.

       Here, Neto's Drywall did not provide Mr. Galindo with medical benefits as
required by section 50-6-204(a)(l)(A). Moreover, Neto's Drywall did not provide Mr.
Galindo with a panel of physicians as required by section 50-6-204(b)(l). Accordingly,
this Court concludes Mr. Galindo came forward with sufficient evidence demonstrating
he is likely to prevail at a hearing on the merits on his entitlement to past medical
expenses and entitlement to a panel of physicians. Therefore, this Court holds Neto's
Drywall is responsible for payment of the Johnson City Medical Center bill for
$10,144.00. Additionally, Neto's Drywall shall provide Mr. Galindo with a panel of
physicians as required by section 50-6-204(b )(1 ).

                             Temporary Disability Benefits

      In addition to medical benefits, Mr. Galindo seeks temporary disability benefits.
An injured employee is eligible for temporary disability benefits if: ( 1) the injured
employee became disabled from working due to a compensable injury; (2) a causal
connection exists between the injury and the inability to work; and (3) the injured
employee established the duration of the period of disability. Jones v. Crencor, 2015 TN
Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015).

       In the present case, the record reflects the Johnson City Medical Center attending
physician, Dr. Misenar, discharged Mr. Galindo with instructions to remain offwork for

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two days. The record further reflects Neto's Drywall paid Mr. Galindo for the day of
injury as well as the two days he remained off work. Moreover, Mr. Galindo returned to
work on February 8, fewer than seven days following the work injury. An injured
employee is not entitled to disability benefits during the first seven days of disability
resulting from the work injury, excluding the date of injury. Tenn. Code Ann. § 50-6-
205(a). Therefore, at this time, the Court concludes Mr. Galindo did not come forward
with sufficient evidence demonstrating he is likely to prevail at a hearing on the merits on
his entitlement to temporary disability benefits.

           Entitlement to Payment ofBenefits from Uninsured Employers Fund

       Although this Court holds Neto's Drywall must provide Mr. Galindo with past and
ongoing medical benefits, it is unclear whether payment will be forthcoming since Neto's
Drywall did not have workers' compensation insurance on the date of injury and it has
not participated in the litigation of this claim. However, under section 50-6-802( e)(1 ),
the Bureau has discretion to pay limited temporary disability and medical benefits to "any
employee who suffered an injury arising primarily within the course and scope of the
employee's employment with an employer who failed to secure the payment of
compensation at the time the eligible employee suffered the injury." Tenn. Code Ann. §
50-6-801 (d).

       To be eligible for payments from the Bureau, the employee must satisfy the
following criteria:

    1. The employee was employed by an employer who failed to secure payment of
       compensation;

   2. The employee suffered an injury on or after July 1, 2015, primarily within the
      course and scope of employment, at a time when the employer had failed to secure
      the payment of compensation;

   3. The employee was a Tennessee resident on the date of injury; and

   4. The employee provided notice to the Bureau of the injury and of the failure of the
      employer to secure the payment of compensation within a reasonable period of
      time, but in no event more than sixty days, after the date of the injury.

!d. at§ 50-6-801(d)(l)-(4).

       Based upon the Bureau's Expedited Request for Investigation report, the Court
finds as follows:

   1. Mr. Galindo was employed by Neto's Drywall, which failed to carry workers'

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       compensation insurance;

   2. Mr. Galindo suffered an injury on or after July 1, 2015, primarily within the
      course and scope of employment, at a time when Neto's Drywall failed to secure
      the payment of compensation;

   3. Mr. Galindo was a Tennessee resident on February 3, 2016, the date of the injury;
      and,

   4. Mr. Galindo provided notice to the Bureau of the injury and of the failure of
      Neto's Drywall to secure the payment of compensation within a reasonable period
      of time, but later than sixty days after the date of injury.

       Based upon the record before it at this time, this Court holds Mr. Galindo failed to
come forward with sufficient evidence demonstrating he is likely to prevail at a hearing
on the merits in satisfying the notice requirement of section 50-6-801 (d)( 4 ).
Accordingly, the Court holds Mr. Galindo is not eligible to receive medical benefits from
the Uninsured Employers Fund at this time. This Order shall not prohibit Mr. Galindo
from filing a new Expedited Hearing should he wish to submit additional documentation
or evidence establishing the notice requirement for eligibility of benefits from the
Uninsured Employers Fund.

IT IS, THEREFORE, ORDERED as follows:

   1. Neto's Drywall shall pay Johnson City Medical Center the amount of $10,144.00
      for Mr. Galindo's February 3, 2016 treatment. Additionally, Neto's Drywall shall
      provide Mr. Galindo with a panel of physicians as required by section 50-6-
      204(b)(1).

   2. Mr. Galindo is not entitled to temporary disability benefits at this time.

   3. Mr. Galindo is not eligible to receive medical benefits from the Uninsured
      Employer's Fund at this time.

   4. This matter is set for a Scheduling Hearing on June 29, 2017, at 10:30 a.m.
      Eastern Time. The parties must call (865) 594-0091 or (toll-free) (855) 543-5041
      to participate in the Scheduling Hearing. Failure to appear by telephone may
      result in a determination of the issues without your further participation.

   5. 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)
      (2016). The Insurer or Self-Insured Employer must submit confirmation of

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       compliance      with    this     Order    to    the   Bureau     by     email     to
       WCC mpliance.Pr gram@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.

   6. For questions regarding compliance, please contact the Workers' Compensation
      Penalty Unit by email at W ornplianc .Program@tn.g v or by telephone at
      (615) 253-1471 or (615) 532-1309.

       ENTERED this the lOth day ofMay, 2017.          __,------'



                                                             QI\S~
                                         HON. PAMELA B. JOHNSON
                                         Workers' Compensation Judge


                                      APPENDIX

       The Court reviewed the entire case file in reaching its decision. Specifically, the
Court reviewed the following documents, marked as exhibits for ease of reference:

Exhibits:
   I. Petition for Benefit Determination
   2. Dispute Certification Notice issued July 15, 2016, with attachments (50 pages)
       including:
       • Johnson City Medical Center Medical Bill for admission date February 3, 2016
       • Incident/Accident Report Form
       • JCMC Discharge Instructions
       • JCMC Emergency Department Return to Work Release
       • Mountain States Health Alliance Authorization for Release of Medical
           Information and Medical Records
 3. Show Cause Order, filed October 19, 2016
 4. Expedited Request for Investigation Report, filed October 27, 2016
 5. Order Quashing Dispute Certification Notice and Referral to Mediation, Issued
     November 4, 2016
 6. Dispute Certification Notice, filed November 18, 2016, with duplicate attachments
     (61 pages)
 7. Request for Expedited Hearing, filed Decemberl9, 2016
 8. Affidavit, filed February 16, 2017
 9. Docketing Notice for a Decision on the Record, filed April 13, 2017


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                            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 1Oth day
ofMay, 2017.

         Name             Certified   Fax       Email   Service sent to:
                            and
                          Regular
                           Mail
Augustin Galindo             X                   X      Augustin Galindo
Self-Represented                                        1810 Unaka A venue
Employee                                                Johnson City, TN 37601
                                                        esmeCig1 @.,.gmaiJ .com
Neto's Drywall, LLC,          X                         Ernesto Reyes Mota
Self-Represented                                        Neto's Drywall, LLC
Employer                                                41 Goose Creek Road
                                                        Swannanoa, NC 28778




                                                          SHRUM, Court Clerk
                                                        .CourtCierk@tn.gov




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