                                                                                                            FILED
                                                                                                         JUNE 6,2016

                                                                                                       1N COURT OF
                                                                                                   WORKERS' COMPENSATION
                                                                                                          CLAIMS

                                                                                                           Time: 7:15AM


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

Yonics Alexis Enriquez Sanchez,                           )    Docket No.: 2016-01-0218
             Employee,                                    )
v.                                                        )    State File No.: 31598-2015
Oz Construction Co.,                                      )
            Employer,                                     )    Judge Thomas Wyatt
And                                                       )
                                                          )
Acuity Ins. Co.,                                          )
             Carrier.                                     )

     EXPEDITED HEARING ORDER FOR TEMPORARY TOTAL DISABILITY
                            BENEFITS


       This case came before the undersigned Workers' Compensation Judge on May 19,
2016, upon the Request for Expedited Hearing filed by the employee, Yonics Alexis
Enriquez Sanchez, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The
hearing focused on whether is entitled to an award of temporary disability benefits for the
period between April 1, 2015, and December 15, 2015. For the reasons set forth below,
the Court finds Mr. Sanchez is entitled to temporary total disability benefits from April 1,
2015, until May 19, 2015 .. 1

                                               History of Claim

        Mr. Sanchez is a twenty-four-year-old resident of Hamilton County, Tennessee.
(T.R. 1 at 1.)       On the date of injury, he was a Mexican citizen working without
documentation. (Ex. 7 at 1.)        On November 17, 2014, Mr. Sanchez worked on a
framing crew for Oz Construction Company in the erection of a multi-unit housing
complex near downtown Chattanooga.          He was framing on the third floor of the
partially-erected structure when a high wind caused it to collapse. Mr. Sanchez fell to the
ground with the collapsing structure, coming to rest pinned beneath the roof of the fallen
1
  A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
structure with his left leg bent under his body. Mr. Sanchez suffered severe damage to
his left knee.

       Osvaldo Nunez, the owner of Oz Construction, initially handled Mr. Sanchez's
injury without reporting it to his workers' compensation carrier. 2 Mr. Sanchez testified
that, beginning November 25, 2014 (Ex. 8 at 42), Mr. Nunez took him for treatment of
his knee to Dr. Benjamin S. Miller, an orthopedic surgeon. Even though he could not
work due to his left-knee injury, Mr. Nunez personally paid Mr. Sanchez differing
weekly amounts, totaling $3,850 (Ex. 4), during the three months following the injury.
Mr. Sanchez used some of this money to pay for Dr. Miller's treatment. Dr. Miller did
not know Mr. Sanchez was a workers' compensation patient until more than five months
after Mr. Sanchez came under Dr. Miller's care. (Ex. 6 at 16, 18.)

        During the first treatment visit, Dr. Miller injected Mr. Sanchez's left knee and
ordered an MRI, which revealed a subluxation of the knee joint, a dislocated patella, and
tears in the medical collateral and posterior collateral ligaments. !d. at 36, 40. All
injuries but the tom posterior collateral ligament healed with conservative therapy. !d. at
26-7. On April 1, 2015, Dr. Miller surgically repaired the tom left posterior collateral
ligament. !d. at 22.

       Mr. Sanchez testified Dr. Miller confined him to physical therapy and bedrest for
approximately three months following the surgery. He stated he tried to return to work at
a restaurant in October 2015, but, after only four days, left this position because it caused
pain and swelling in his left knee. Mr. Sanchez testified he returned to full-time
restaurant work on December 15, 2015, when his left knee had more fully healed.

        Mr. Sanchez stated during the Expedited Hearing his only income from April 1,
2015, the date of surgery, until December 15, 2015 the date he began full-time
restaurant work,3 consi sted of his pay for the four days of restaurant work in October
2015, and two $300 workers' compensation checks from Acuity Ins. Co. Mr. Sanchez
testified his knee injury precluded him from working all but three or four days during the
above-stated period. He seeks temporary disability benefits at the rate of $310.22 per
week. 4

        Oz Construction contended Mr. Sanchez did not establish entitlement to
temporary disability benefits. It argued Mr. Sanchez's credibility is suspect because of
his status as an illegal immigrant and, further, because Dr. Miller's records indicate he
worked extensively during the alleged period of disability.

2
    The carrier, Acuity Ins. Co., did not receive notice of this injury until July 31, 2015. (Ex. 3 at I.)
3
    Mr. Sanchez limited his claim to temporary disability benefits to this time period.
4
    The parties stipulated this amount to be Mr. Sanchez' s compensation rate.

                                                               2
                             Findings of Fact and Conclusions of Law

         Mr. Sanchez bears the burden of proof on all essential elements of his 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, 2015). He need not,
however, 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). Rather, he has the burden to come forward with
sufficient evidence from which the Court can determine that he is likely to prevail at a
hearing on the merits.

        Mr. Sanchez seeks temporary disability benefits in this Expedited Hearing. The
foundational legal authority on the establishment oftemporary disability benefits is found
in Jones v. Crencor Leasing and Sales, No. 2015-01-0332, 2015 TN Wrk. Comp. Bd.
LEXIS 48, at *7-8 (Tenn. Workers' Comp. App. Bd. Dec. 11, 2015), in which the
Tennessee Workers' Compensation Appeals Board, citing Simpson v. Satterfield, 564
S.W.2d 953, 955 (Tenn. 1978), held, "[a]n injured worker is eligible for temporary
disability benefits if: ( 1) the worker became disabled from working due to a compensable
injury; (2) there is a causal connection between the injury and the inability to work; and
(3) the worker established the duration of the period of disability."

       In this claim, Oz Construction does not seriously dispute that Mr. Sanchez
suffered a compensable left-knee injury that disabled him during a period of time after its
occurrence. The determinative issue here involves the third prong of the test set forth
above in the quoted language from the Jones opinion-the period during which Mr.
Sanchez temporarily suffered disability due to his left-knee injury. Stated more
specifically, the Court must decide whether Mr. Sanchez worked more than he testified
he did during the claimed compensation period, April 1, 2015, to December 15, 2015.

       In making its determination, the Court notes Mr. Sanchez's testimony that he only
worked four days at a restaurant during the claimed eight and one-half month
compensation period. Against this testimony, the Court considers the information
contained in Dr. Miller's records regarding Mr. Sanchez's work status. 5 In comparing
Mr. Sanchez's testimony with the information in the records, the Court recognizes the

5
  The Court will not, as advocated by Oz Construction, impugn Mr. Sanchez's credibility because he was an
undocumented worker when injured. The Tennesset: Workers' Compensation Law provides all benefits except
enhanced disability benefits to undocumented workers who suffer injuries that arise primarily out of and in the
course and scope of employment. See Tenn. Code Ann. § 50-6-207(3)(F) (20 I 5). The Court finds it inconsistent
with the public policy of the Workers' Compensation Law to discredit an injured worker's testimony merely
because he or she falls within a status that the Law itself considers insufficient to deny benefits to the worker.


                                                        3
fact that, during his deposition, Dr. Miller conceded he does not personally obtain and
record some of the information contained in his records, but relies on his assistants to do
so. (Ex. 6 at 25.) However, Dr. Miller testified his medical training emphasized the
importance of obtaining and maintaining in his treatment records accurate information
from patients, !d. at 15, and further averred he does not believe his assistants simply
carry over information from visit-to-visit. ld. at 25. Although Mr. Sanchez' s counsel
pointed out discrepancies in the factual data contained in Dr. Miller's records, 6 the Court
finds no compelling reason to question the accuracy of the information in the records
regarding Mr. Sanchez's work status.

       In the first post-operative visit on April 3, 2015, Dr. Miller's note recorded that
Mr. Sanchez was not working. (Ex. 8 at 23.) Identical notations appeared in the April
17, 2015, and May 1, 2015 notes. !d. at 19-21. Dr. Miller's May 19, 2015 note,
however, indicates Mr. Sanchez had returned to modified duty and was "not really having
any pain at all." ld. at 17. Based on the above-described records, the Court finds Mr.
Sanchez established that, at a hearing on the merits, he will likely prevail in proving his
entitlement to temporary total disability benefits from April 1, 20 15, until May 19, 20 15.

        Beginning with the May 19 treatment note, Dr. Miller's records and Mr. Sanchez's
testimony differ significantly regarding his work status. Dr. Miller's June 16, 2015 and
July 14, 2015 records document continuation of Mr. Sanchez's modified-duty status.
(Ex. 8 at 12, 15.) The earlier note contains Dr. Miller's opinion Mr. Sanchez could not
return to construction work, but could try restaurant work. ld. at 15. While the August
18, 2015 note indicates Mr. Sanchez was not working at all, it also records, "[h]e is back
to work." ld. at 11. Dr. Miller's September 10, 2015 note indicates Mr. Sanchez is doing
better and is working full-time at a restaurant. !d. at 7. The same notation appears in Dr.
Miller's October 16, 2015 note. ld. at 5.

        When considering the totality of the evidence, the Court identifies numerous
discrepancies between the work status information in Dr. Miller's records and Mr.
Sanchez's testimony that he only worked four days between April 1, 2015, and December
15, 2015. Accordingly, the Court finds Mr. Sanchez has not, at this time, come forward
with sufficient information to show he would prevail at a hearing on the merits that he is
entitled to temporary disability benefits from May 20, 2015, until December 15, 2015.
The Court thusly denies Mr. Sanchez's claim for temporary disability benefits after May
19, 2015.




6
 Counsel pointed out discrepancies in the information recorded about Mr. Sanchez's smoking history, age and
gender. (Ex. 6 at 25-27.)


                                                    4
       IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Sanchez is awarded temporary total disability benefits at the weekly
      compensation rate of$310.22 from April 1, 2015, until May 19, 2015, a period of
      seven weeks and six days, or$ 2,435.23. Oz Construction may deduct the $600 in
      temporary disability benefits it previously paid, thus the net award here is
      $1,835.23.

   2. Mr. Sanchez's claim for temporary total or temporary partial disability benefits
      from May 20, 2015, until December 15, 2015, is denied at this time.

   3. This matter is set for an Initial (Scheduling) Hearing on July 29, 2016, at 10:00
       a.m. Eastern Time.

       ENTERED this the 6th day of Jun7701~               ,
                                       f/~              ~lb
                                 Thomas Wyatt, Judge
                                 Court of Workers' Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Thomas Wyatt, Court
of Workers' Compensation Claims. You must call 855-747-1721 (toll-free) or 615-
741-3061 to participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.


Right to Appeal:

      Tennessee Law allows any party who disagrees with this Expedited Hearing Order
Denying 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.


                                          5
   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
      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.

       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.




                                            6
                                               APPENDIX

Exhibits:

1. Affidavit of Yonics Alexis Enriquez Sanchez;
2. Responses of Oz Construction and Acuity Ins. Co. to Benefit Review Conference
   Employer Standard Discovery Form;
3. First Report of Injury;
4. Wage Statement;
5. Final Medical Report of Dr. Benjamin S. Miller;
6. Transcript of the Deposition of Dr. Benjamin S. Miller;
7. Discovery Responses of Yonics Alexis Enriquez Sanchez; and
8. Exhibits to the Deposition of Dr. Benjamin S. Miller, including Dr. Miller's
   Curriculum Vitae and Dr. Miller's treatment notes.


Technical record: 7

1.   Petition for Benefit Determination, filed March 30, 2016;
2.   Dispute Certification Notice, filed April21, 2016;
3.   Request for Expedited Hearing, filed May 3, 2016;
4.   Notice ofExpedited Hearing, filed May 10, 2016; and
5.   Employer's Response to Employee's Request for Expedited Hearing, filed May 10,
     2016.




7
   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.




                                                      7
                            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 6th day of
June, 2016.


 Name                     Certified    Via        Via    Service sent to:
                           Mail        Fax       Email
 Marc Walwyn,                                      X     marc@walwynlaw .com;
 Attorney for
 Employee
 David Hatfield,                                  X      dhatfield@dmrpclaw .com
 Attorney for Em_ployer




                                                     , Clerk of Court
                                          Court of r kers' Compensation Claims
                                          WC.CourtCierk@tn.gov




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