                                                                                  FILED
                                                                                Aug 07, 2019
                                                                                11:37 AM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




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

Barry W. Burbank,                            )   Docket No.: 2018-01-0780
           Employee,                         )
v.                                           )   State File No.: 85286-2018
Cross Constr. & Land Svcs., Inc.,            )
            Uninsured Employer.              )   Judge Audrey Headrick


                           EXPEDITED HEARING ORDER


       Mr. Burbank requested that Cross Construction & Land Services, Inc. (Cross
Construction) provide medical and temporary disability benefits for a right-leg injury.
Cross Construction neither responded to Mr. Burbank's request nor appeared for the
August 1, 2019 Expedited Hearing. For the reasons below, the Court awards medical
benefits but denies the claim for temporary disability benefits.

                                    History of Claim

       Mr. Burbank, a heavy equipment operator, alleged he injured his right leg with a
chain saw on September 12, 2018, while cutting a tree stump at the direction of James
Cross, shareholder of Cross Construction, and the jobsite developer. He was alone at the
time of the accident, so he immediately called 9-1-1 and Mr. Cross.

       According to Mr. Burbank, Mr. Cross told him to obtain any medical treatment
needed and provide him with the bills for payment, since his workers' compensation
insurance lapsed the day before. He traveled by ambulance to the hospital, where a
medical provider sutured the wound and referred him to a surgeon, Dr. Marc A.
Campbell.

       Mr. Burbank testified that after he left the hospital, Mr. Cross told him to stop by
his house. Mr. Cross gave him $200.00 for prescription medications/supplies and told
him to take time off work to heal. Mr. Burbank stated that, weather-permitting, he
typically worked forty hours a week at an hourly rate of $16.50. Mr. Cross paid Mr.


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Burbank $165.00 for a two-week period. He did not provide Mr. Burbank with any other
medical or temporary disability benefits.

        Mr. Burbank returned to the emergency room on September 18 due to a wound
infection, but he did not submit those medical records. After two weeks off, Mr. Burbank
stated the medical provider cleared him to return to work.

       Upon Mr. Burbank's return, his work hours decreased. His supervisor told him
there was no work available. Due to the lack of work, Mr. Burbank resigned on October
25 and found employment elsewhere as a forklift operator.

        Mr. Burbank testified that in November or December, he started experiencing
consistent right-foot numbness and excruciating pain. As a result, he had to leave his
forklift operator job. However, Mr. Burbank has not obtained any medical treatment
since September, and he has incurred over $11,000.00 in medical bills.

       Mr. Burbank notified the Bureau of Workers' Compensation of his injury on
November 5 and filed a Petition for Benefit Determination on November 7. The
Bureau's Compliance Unit investigated and prepared an Expedited Request for
Investigation Report, noting that Cross Construction admitted it was uninsured at the time
of Mr. Burbank's injury. Further, it did not dispute that the work injury occurred as Mr.
Burbank described. 1

                          Findings of Fact and Conclusions of Law

                                         Standard Applied

        At an expedited hearing, Mr. Burbank must present sufficient evidence to prove he
is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(l)
(20 18). The Court holds he would likely prevail in his claim for medical benefits but not
temporary disability benefits. The Court additionally holds that Mr. Burbank, a
Tennessee resident at the time of his injury, suffered an injury arising primarily out of
and in the course and scope of his employment on September 12, 2018, and gave notice
to the Bureau within sixty days of that injury.

                                         Medical Benefits

      Under the Workers' Compensation Law, an employer must "furnish, free of
charge to the employee, such medical and surgical treatment . . . made reasonably
1
  The investigator also noted Mr. Cross asserted that he instructed Mr. Burbank not to operate the
chainsaw, but he did so anyway. As noted, Cross Construction did not file any response to Mr. Burbank's
Request for Assistance and did not participate in any hearings, including the Expedited Hearing.
Therefore, the Court gives no weight to Mr. Cross's assertion to the investigator.

                                                  2
necessary by accident[.]" Tenn. Code Ann. § 50-6-204(a). To receive benefits, Mr.
Burbank must show, to a reasonable degree of medical certainty, that the September 12,
2018 incident "contributed more than fifty percent (50%) in causing the ... disablement
or need for medical treatment, considering all causes." Tenn. Code Ann.§ 50-6-102(14).

      Here, the evidence submitted is sufficient to show that Mr. Burbank cut his leg
with a chainsaw at work on September 12. The Court finds the submitted bills
reasonable, necessary and related to the work incident. The Court further holds that
Cross Construction must pay for Mr. Burbank's past and ongoing medical treatment for
the work injury.

                              Temporary Disability Benefits

       Mr. Burbank also requested temporary disability benefits. There are two kinds:
temporary total and temporary partial. To receive temporary total disability benefits, Mr.
Burbank must prove (1) he became disabled from working due to a compensable injury;
(2) a causal connection exists between the injury and his inability to work; and (3) he
established the duration of his disability. Jones v. Crencor Leasing and Sales, TN Wrk.
Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Concerning temporary partial
disability benefits, Mr. Burbank is eligible for benefits if he earned less than his average
weekly wage due to work restrictions. See Tenn. Code Ann. § 50-6-207(2)(A).

      Here, Mr. Burbank might be entitled to past temporary disability benefits.
However, he submitted no medical proof reflecting any work restrictions. Thus, the
Court must deny his request for temporary disability benefits at this time.

                              Compliance Program Referral

        The Compliance Program is specifically authorized to assess penalties under the
Workers' Compensation Law as well as the General Rules ofthe Workers' Compensation
Program. Since Cross Construction failed to have workers' compensation coverage, file
a First Report of Work Injury, and provide medical treatment and a panel of physicians,
the Court refers this matter to the Compliance Program for consideration of any
applicable penalties.

                                   Payment ofBenefits

       Cross Construction must provide medical and temporary disability benefits.
However, since it did not have workers' compensation insurance at the time of the injury,
the Uninsured Employers Fund (UEF) has discretion to pay limited temporary disability
benefits and medical expenses if certain criteria are met. (See attached Benefits Request
Form.) Mr. Burbank must establish, through his testimony, medical records, and the
Bureau's Compliance report, that he has proved or is likely to prove that he: 1) worked

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for an uninsured employer; 2) suffered an injury arising primarily in the course and scope
of employment on or after July 1, 2015; 3) was a Tennessee resident on the date of injury;
4) provided notice to the Bureau of the injury and of the employer's lack of coverage
within sixty days of the injury; and, 5) secured a judgment for workers' compensation
benefits against Cross Construction for the injury. Tenn. Code Ann. § 50-6-801(d)(1)-
(5). The Court finds Mr. Burbank satisfied all of these requirements.

IT IS, THEREFORE, ORDERED as follows:

   1. The Court denies Mr. Burbank's request for temporary disability benefits at this
      time.

   2. Marc A. Campbell, DO shall be the authorized treating physician. Cross
      Construction shall provide Mr. Burbank with ongoing medical treatment for his
      September 12, 2018 work injury under Tennessee Code Annotated section 50-6-
      204. Further, upon presentment of bills by Mr. Burbank or his treating providers,
      Cross Construction shall pay all past expenses incurred for treatment of his work-
      related injury by, or upon the direction of, the following: 1) Anderson County
      EMS; 2) UT Medical Center; 3) University Radiology; 4) University General
      Surgeons, P.C.; 5) Southeastern Emergency Physicians; and, (6) Starr Regional
      Medical Center.

   3. This case is set for a Status Hearing on Tuesday, October 1, 2019, at 12:30 p.m.
      Eastern Time. The parties must call (423) 634-0164 or toll-free at (855) 383-0001
      to participate. Failure to call may result in a determination of the issues without
      your participation.

   4. 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 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.

   5. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email at WCCompliance.Program@tn.gov.




                                            4
ENTERED August 7, 2019.




                          J~~~r~'cCA
                          Court of Workers' Compensation Claims




                                  5
                                    APPENDIX

Exhibits:
   1. Expedited Request for Investigation Report
   2. University of Tennessee medical records
   3. Billing statements:
          a. Anderson County EMS
          b. UT Medical Center
          c. University Radiology
          d. University General Surgeons, P.C.
   4. Affidavit of Barry William Burbank with attachments:
          a. Text messages with supervisor, "Sonny"
          b. Text messages with boss, "Bo"
          c. Billing statements, including Southeastern Emergency Physicians and Starr
             Regional Medical Center
          d. Photos of injured leg
   5. Payroll records

Technical record:

   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Show Cause Order
   4. Notice of Show Cause Hearing
   5. Request for Expedited Hearing
   6. Order Setting Expedited Hearing
   7. Notice of Expedited Hearing
   8. Motion to Continue
   9. Order Granting Motion to Continue
   10. Notice of Status Hearing
   11. Order Setting Expedited Hearing
   12. Notice of Expedited Hearing




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                            CERTIFICATE OF SERVICE

 I certify that a copy of this Expedited Hearing Order was sent as indicated on August 7,
 2019.

        Name             Certified    Email       Service sent to:
                          Mail
Barry Burbank,              X                     tazzy 100 190@ gmail.com
Employee                                          200 County Road 298
                                                  Sweetwater, TN 37874
Cross Constr. & Land         X                    Attn: James Cross
Svs., Inc.,                                       425 Myrtle Ward Road
Uninsured Employer                                Philadelphia, TN 37846
Amanda Terry,                           X         WCComgliance. grogram@tn .gov
Compliance Program                                Amanda. terry@ tn. gov

LaShawn Pender                          X         lashawn.J2ender(ci2tn. e:ov




                                         Penn Shrum, ~ lerk of Court
                                         Court of Wm ~e rs' Compensation Claims
                                         WC.CourtClerk@tn.gov




                                              7
Filed Date Stamp Here
                                    Tennessee Bureau of Workers’ Compensation
                                      www.tn.gov/workforce/injuries-at-work
                                              wc.ombudsman@tn.gov
                                                  1-800-332-2667

                   REQUEST FOR BENEFITS FROM THE UNINSURED EMPLOYERS FUND

Eligible employees may use this form to request benefits from the Uninsured Employers Fund (UEF) if
they are injured while working for an employer that failed to provide:

    1.   Workers’ compensation insurance as required by the TN Workers’ Compensation Law; and,
    2.   Medical and/or disability benefits as required by the TN Workers’ Compensation Law.

This form MUST be completed and sent via certified mail to the following address:

                                    Tennessee Bureau of Workers’ Compensation
                                    ATTN: UEF Benefit Manager
                                    Uninsured Employers Fund
                                    220 French Landing Drive, Suite 1B
                                    Nashville, TN 37243-1002.

This form MUST be sent within sixty (60) calendar days after the claim is over and MUST include:

    1.   A court order stating your employer owes you benefits and that you may request UEF benefits;
    2.   A completed Internal Revenue Service (IRS) Form, W-9 Request for Taxpayer Information and
         Certification available at www.irs.gov; and
    3.   A completed Bureau of Workers’ Compensation Form C31 Medical Waiver and Consent available
         on the “Forms” link at www.tn.gov/workerscomp.


I certify that I believe I am eligible for benefits from the UEF; that my employer has not paid all or part of
the benefits I am due; and my employer has not complied with an order issued by the Court of Workers’
Compensation Claims.

I, _______________________________________, request benefits from the Uninsured Employers Fund.
                (Print Your Name)




____________________________________________________________________________________________________
Signature                                                         Date



Tennessee Law allows the State of Tennessee to recover payments made by the UEF for temporary
disability benefits or medical benefits. An agreement between you and your employer for payment of
benefits must be pre-approved by the UEF before being approved by a workers’ compensation judge.



LB-3284 (NEW 4/19)                                                                            RDA 10183
