                                                                                                                FILED
                                                                                                          December 9.,,201,6

                                                                                                               TN COURT OF
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                                                                                                                  CL.AL\'lS

                                                                                                                Time· 1:3:5 PM

               TENNESSEE BUREAU OF WORKERS' COMPENSATION
              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT KNOXVILLE

GRANLY SALMERON,                                            )   Docket No.: 2016-03-0434
        Employee,                                           )
v.                                                          )   State File No.: 8178-2015
BC CONSTRUCTION,                                           )
         Employer,                                          )   Judge Lisa Lowe Knott
And                                                        )
LIBERTY MUTUAL INS. CO.,                                   )
         Carrier.                                          )
                                                           )

                       EXPEDITED HEARING ORDER
           DENYING ADDITIONAL TEMPORARY DISABILITY BENEFITS


        This matter came before the undersigned Workers' Compensation Judge on
November 15, 2016, on the Request for Expedited Hearing filed by the Employee, Granly
Salmeron, pursuant to Tennessee Code Annotated section 50-6-239 (2015). Mr.
Salmeron requests additional temporary total disability benefits based upon his position
that BC Construction improperly calculated his compensation rate. The central legal
issue involves calculation of the correct average weekly wage and corresponding
workers' compensation rate. For the reasons set forth below, the Court finds Mr.
Salmeron has not come forward with sufficient evidence from which this Court concludes
that he is likely to prevail at a hearing on the merits. 1

                                               History of Claim

        BC Construction, a sole proprietorship owned by Carlos Bustamante, employed
Mr. Salmeron as a construction laborer. He mainly performed roofing and siding work.
Mr. Salmeron testified that he was a supervisor and worked forty hours per week for
fifty-two weeks per year at an average pay of $800-$1000 per week. While working on a
job site on January 30, 2015, Mr. Salmeron sustained an injury when a nail hit his right
eye.
1
  A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

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       After undergoing eye surgery in February, Mr. Salmeron said he attempted to
return to work, but Mr. Bustamante refused to allow him to return. He insisted that he
did not work for Mr. Bustamante following his January 30 injury. He also stated Gabriel
Umana, a co-worker, was paid between $700 and $800 per week and that he worked the
same amount of time as Mr. Umana. 2              On cross-examination, Mr. Salmeron
acknowledged he did not have any documentation with him to substantiate his claim that
he worked forty hours per week. The parties agreed that Liberty Mutual paid Mr.
Salmeron temporary disability benefits from January 31 to March 27 and August 21 to
October 26 at a rate of $194.13. (Ex. 7.) Mr. Salmeron alleged he is entitled to the
difference between the rate of $194.13 and his alleged rate of either $532.80 or $666.000
(based on average pay of $800-$1000 per week) for the same time periods.

        Mr. Bustamante testified 3 that Mr. Salmeron was not a supervisor and did not
work forty hours per week. He stated he would call Mr. Salmeron as needed to work for
a few days to complete jobs. He said the work was not steady and he did not pay Mr.
Salmeron $800 to $1000 per week. He testified that he paid Mr. Salmeron $10.50,
$11.00, or $12.00 per hour depending on whether he was performing framing, roofing, or
siding work. He prepared the Wage Statement and confirmed Mr. Salmeron's average
weekly wage was $291.20 with a corresponding workers' compensation rate of$194.13.
(See Ex. 3.) Contrary to Mr. Salmeron's testimony, Mr. Bustamante stated he did return
to work following the injury in 2015. Mr. Bustamante introduced a 1099-form that
reflected he paid Mr. Salmeron a total of $13,584.00 for 2015. (Ex. 5.) In addition, Mr.
Bustamante introduced into evidence receipts for payments he made to Mr. Salmeron in
2014 and 2015. (Ex. 6.) He provided the following 2015 receipts:

        January 5-9                 $250.00             January 12-16                    $350.00
        January 19-23               $300.00             January 26-30                    $200.00
        February 2-6                $250.00             February 9-13                    $260.00
        February 16-20              $320.00             February 23-27                   $220.00
        March 2-6                   $350.00             March 9-13                       $350.00
        March 16-20                 $400.00             March 23-29                      $350.00
        April Receipts were illegible
        May 4-8                     $400.00             May 11-15                        $225.00
        May 18-22                   $225.00             May 24-June 1                    $350.00

       Finally, with regard to the average weekly wage and workers' compensation rate
used in Mr. Umana's case, Mr. Bustamante stated that Mr. Umana is Mr. Salmeron's
brother. He further testified that no one from Liberty Mutual contacted him to discuss the

2
   Mr. Salmeron attempted to introduce into evidence settlement documents from Mr. Umana's workers'
compensation claim. BC Construction objected. The Court sustained the objection and marked the settlement
documents for identification purposes only as Exhibit 8.
3
  Because Mr. Bustamante was working in Florida, he testified via telephone at the Expedited Hearing.

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appropriate average weekly wage and that Mr. Umana had only worked for him on the
day he was injured. He was not aware of Mr. Umana's settlement or the average weekly
wage utilized by the parties until this hearing.

                       Findings of Fact and Conclusions of Law

       The Court considers the following legal principles in reaching its conclusions in
this matter. Mr. Salmeron has the burden of proof on all essential elements of his
workers' compensation claim. 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, 20 15). Mr. Salmeron 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, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-
8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). At an expedited hearing, Mr.
Salmeron has the burden to come forward with sufficient evidence from which the trial
court can determine he is likely to prevail at a hearing on the merits. !d. This lesser
evidentiary standard "does not relieve an employee of the burden of producing evidence
of an injury by accident that arose primarily out of and in the course and scope of
employment at an expedited hearing, but allows some relief to be granted if that evidence
does not rise to the level of a 'preponderance of the evidence."' Buchanan v. Carlex
Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Tenn.
Workers' Comp. App. Bd. Sept. 29, 2015).

         The sole dispute at this interlocutory hearing revolves around Mr. Salmeron's
earnings while working for Mr. Bustamante. In this regard, the Court finds Mr.
Salmeron's testimony suspect. Mr. Salmeron testified he worked forty hours per week
for fifty-two weeks per year making $800 to $1000 per week, but provided no
documentation to support this contention. Conversely, Mr. Bustamante testified that
work in the construction industry is not steady, forty-hour-per-week work. He provided
receipts for payments to Mr. Salmeron that range between a low of $150 per week to a
high of $400 per week, with the majority of the 2014 payments being in the $200-$250
range. The Court finds Mr. Bustamante's testimony more plausible, reliable, and
substantiated by the receipts placed into evidence. In addition, though Mr. Salmeron
testified that he did not work for Mr. Bustamante after his injury, the receipts reflect he
worked for Mr. Bustamante for at least four months after the injury. This calls his overall
credibility into question. The Court finds Mr. Bustamante's testimony that Mr.
Salmeron's average weekly wage was $291.20 per week with a compensation rate of
$194.13 more plausible than Mr. Salmeron's testimony that he was paid $800-$1000 per
week.

       Therefore, as a matter of law, Mr. Salmeron has not come forward, at this stage of
the case, with sufficient evidence from which this Court might conclude he is likely to
prevail at a hearing on the merits. His request for additional temporary total disability

                                            3
benefits is denied at this time.

IT IS, THEREFORE, ORDERED as follows:


    1. Mr. Salmeron's claim against BC Construction and its workers' compensation
       carrier for the requested additional temporary total disability benefits is denied at
       this time.

    2. This matter is set for a Scheduling Hearing on January 19, 2017, at 1:30 p.m.
       Eastern Time.

       ENTERED this the 9th day of December, 2016.


                                                 N~~n
                                           HON. LISA LOWE KNOTT
                                          Workers' Compensation Judge

Scheduling Hearin g:

        A Scheduling Hearing has been set with Judge Lisa Lowe Knott, Court of
Workers' Compensation Claims. The parties must call 865-594-0109 or 855-383-0003
toll free to participate in the Hearing. Failure to appear by telephone may result in a
determination of the issues without your further participation.

Ri ght to App al :

       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

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   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
   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: ( 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.




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                                       APPENDIX

Technical Record:
   • Petition for Benefit Determination, filed May 2, 20 16;
   • Dispute Certification Notice, filed June 16, 2016;
   • Show Cause Order, issued September 6, 2016;
   • Request for Expedited Hearing, filed September 14, 2016;
   • Employer's Position Statement and Request for Evidentiary Hearing, filed
      September 21, 2016; and
   • Order Denying Request for a Decision Based on Review of the File and Granting
      Request for an In-Person Evidentiary Hearing, entered September 22, 2016.

       The Court did not consider attachments to Technical Record filings unless
admitted into evidence during the Expedited Hearing. The Court considered factual
statements in these filings or any attachments to them as allegations unless established by
the evidence.

Exhibits:
       •    EXHIBIT 1: Affidavit of Granly Salmeron;
       •    EXHIBIT 2: Affidavit of Carlos Bustamante;
       •    EXHIBIT 3: Wage Statement, Form C-41;
       •    EXHIBIT 4: Medical Records of Dr. Lauren Harris, University Eye Surgeons;
       •    EXHIBIT 5: Job Description and 2015 Tax Documentation;
       •    EXHIBIT 6: 2014 Tax and Payment Documentation;
       •    EXHIBIT 7: Record of Temporary Total Disability Payments; and
       •    EXHIBIT 8 FOR IDENTIFICATION PURPOSES ONLY: Workers'
            Compensation Settlement Documents for co-worker.




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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 9th day of
December, 2016.


Name                        Certified   Via       Via       Service sent to:
                            Mail        Fax       Email
Philip Strang, Esq.,                                X       philip@foxandfarmer.com
Employee's Counsel
Eric Shen, Esq.,                                    X       eric.shen@libertymutua l.com
Employer's Counsel




                                                             SHRUM, Court Clerk
                                                          z .CourtClerk@tn.gov




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