                                                                                               FILED
                                                                                            Mar 02, 2020
                                                                                            10:33 PM(CT)
                                                                                         TENNESSEE COURT OF
                                                                                        WORKERS' COMPENSATION
                                                                                               CLAIMS




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

JESUS HERRERA,                                      ) Docket Nos.: 2019-05-0765
         Employee,                                  )               2019-05-0764
v.                                                  )
                                                    )
PEDRO LUNA,                                         ) State File Nos. 49239-2019
And                                                 )                 47819-2019
TURCIOS MASONRY,                                    )
         Employers,                                 )
And                                                 )
                                                    )
BUSINESSFIRST INS. CO.,                             ) Judge Dale Tipps
         Carrier.                                   )


                EXPEDITED HEARING ORDER DENYING BENEFITS


       This case came before the Court on February 26, 2020, for an Expedited Hearing
on whether Mr. Herrera is entitled to temporary disability benefits.1 For the reasons
below, the Court finds Mr. Herrera is unlikely to succeed at a hearing on the merits and
holds he is not entitled to benefits at this time.

                                          History of Claim

       On May 27, 2019, Mr. Herrera was working for Mr. Luna, a subcontractor for
Turcios Masonry, when he fell from a cement mixer. He went to the emergency room,
where records show the doctors diagnosed a left-side rib fracture and other contusions.
They discharged him with a Lortab prescription and an incentive spirometer. Because x-
rays also disclosed a mass in Mr. Herrera’s left lung, the doctors told him to follow up
with his own physicians for additional diagnostic studies, including a probable biopsy.


1
  Mr. Herrera filed two Petitions for Benefit Determination, one against each employer, based on the same
injury. The Mediator also issued separate Dispute Certification Notices for both claims. Because these
claims involve the same alleged injury, the Court finds it appropriate to consolidate them to promote
judicial economy.
                                                   1
       Mr. Herrera does not appear to have received additional treatment for his work
injury until after he filed his Petitions for Benefit Determination (PBD). Because Mr.
Luna’s workers’ compensation insurance had lapsed, the carrier for the general
contractor, Turcios Masonry, paid Mr. Herrera’s emergency room bills and provided a
panel of physicians, from which he selected Concentra Urgent Care.

       Dr. Frank Thomas saw Mr. Herrera at Concentra on September 10, 2019. He
noted a healing left-side rib fracture and left lateral chest pain. Dr. Thomas also noted the
mass in in the left lung and strongly advised Mr. Herrera to keep his scheduled medical
appointment at Murfreesboro Medical Center. He stated that Mr. Herrera had reached
maximum medical improvement from his injury and released him from care.

       At the hearing, Mr. Herrera testified that he received treatment for lung cancer and
tuberculosis over the next several months. He continues to have pain in his left side
whenever he lifts anything, so he has not been able to work since the accident. Even if he
had cancer or tuberculosis before the accident, he felt fine. Because he had no symptoms
until he fell, he believes his fall is the cause of his symptoms, so he is entitled to
temporary disability benefits.2

      Turcios contended that Mr. Herrera is not entitled to temporary disability benefits
because he failed to present evidence of any medical restrictions that would have
prevented him from working.

                               Findings of Fact and Conclusions of Law

      Mr. Herrera must provide sufficient evidence from which this Court might
determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       To receive temporary total disability benefits, Mr. Herrera must establish that (1)
he became disabled from working due to a compensable injury; (2) a causal connection
between his injury and his inability to work; and (3) his period of disability. Jones v.
Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11,
2015).

       Temporary partial disability benefits are available when the temporary disability is
not total. Specifically, TPD “refers to the time, if any, during which the injured
employee is able to resume some gainful employment but has not reached maximum

2
  Mr. Herrera also requested payment of some of his medical bills. However, because medical treatment
was not certified as an issue on the Dispute Certification Notices, the Court has no authority to address
that issue at this time. See Tenn. Code Ann. § 50-6-236(d)(3)(A).
                                                   2
recovery.” Id. An employee may receive TPD benefits when the treating physician
returns him to work with restrictions but the employer either (1) cannot return the
employee to work within those restrictions or (2) cannot provide restricted work that pays
the employee’s average weekly wage on the date of injury. Id. at *8.

       Mr. Herrera presented no medical proof indicating that his physicians took him
completely off work or assigned restrictions because of this injury. Without evidence
that he was disabled or restricted from working, Mr. Herrera has not proven he is likely to
succeed on a claim for temporary disability benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Herrera’s request for temporary disability benefits is denied at this time.

   2. This case is set for a Scheduling Hearing on May 12, 2020, at 9:00 a.m. You must
      call toll-free at 855-874-0473 to participate. Failure to call might result in a
      determination of the issues without your further participation. All conferences are
      set using Central Time.

      ENTERED MARCH 2, 2020.



                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims

                                       APPENDIX

Exhibits:
   1. Affidavit of Jesus Herrera
   2. Choice of Physician form
   3. Notice of Controversy
   4. Medical records from Concentra and Williamson Medical Center

Technical record:
   1. Petitions for Benefit Determination
   2. Dispute Certification Notices
   3. Request for Expedited Hearing
   4. Employer’s Notice of Filing and Witness List
   5. Employer’s Witness List



                                             3
                          CERTIFICATE OF SERVICE

      I certify that a copy of the Expedited Hearing Order was sent as indicated on
March 2, 2020.

Name                    Certified Fax       Email   Service sent to:
                        Mail
Jesus Herrera           X                           1009 Riviera Dr.
                                                    Murfreesboro, TN 37130
Pedro Luna              X                           2714 Murfreesboro Pike
                                                    Lot 33
                                                    Antioch, TN 37013
Amy Brown,                                  X       amy@petersonwhite.com
Employer’s Attorney



                                      _____________________________________
                                      Penny Shrum, Clerk of Court
                                      Court of Workers’ Compensation Claims
                                      WC.CourtClerk@tn.gov




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