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

Jimmy R. Dyer,                                                )   Docket No.: 2016-05-0240
           Employee,                                          )
v.                                                            )   State File No.: 19766-2016
Johnny Morris d/b/a Morris Logging,                           )
           Uninsured Employer.                                )   Judge Dale Tipps
                                                              )
                                                              )



                     EXPEDITED HEARING ORDER
         DENYING MEDICAL AND TEMPORARY DISABILITY BENEFITS
                        (REVIEW OF THE FILE)


       This matter came before the undersigned workers’ compensation judge on October
14, 2016, on the Request for Expedited Hearing filed by the employee, Jimmy Dyer,
pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of
this case is whether Mr. Dyer is entitled to medical and temporary disability benefits.
The central legal issue is whether the evidence is sufficient for the Court to determine
that Mr. Dyer is likely to establish at a hearing on the merits he suffered an injury arising
primarily out of and in the course and scope of his employment. For the reasons set forth
below, the Court holds Mr. Dyer is not entitled to the requested medical and temporary
disability benefits at this time.1

                                               History of Claim

       A review of the file established the following facts. Mr. Dyer stated in his
affidavit that, while working for Johnny Morris on April 13, 2015, he suffered an injury
that resulted in the loss of four of his toes. Mr. Morris knew about the accident and
injury when it occurred, but he provided no workers’ compensation benefits. A second

1
 A complete listing of the technical record and exhibits considered by the Court is attached to this Order as an
appendix.

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affidavit executed by Mr. Dyer states that his average weekly wage was $500.00.

       Records from Southern Tennessee Medical Center show that Mr. Dyer received
treatment in the emergency department on April 13, 2015, for a right foot injury. He
reported a large blade fell on his foot at work. When X-rays showed several fractures
and toe amputations, Mr. Dyer was transferred to Erlanger hospital.

       Emergency room records from Erlanger show that Mr. Dyer’s foot was caught in a
skidder machine at work. The attending physician brought in Dr. Dale Ingram for a
consultation, and Dr. Ingram formalized the traumatic amputations of three toes. He also
instructed Mr. Dyer to return for follow up in seven to ten days.

       Mr. Dyer returned to Southern Tennessee Medical Center on April 15,
complaining of swelling and bleeding at the amputation site of three of his toes. The
attending physician diagnosed cellulitis secondary to a wound infection and prescribed
antibiotics.

        On October 28, 2015, Mr. Dyer saw Dr. Nick Richardson for complaints of
significant pain in one of his remaining toes. Dr. Richardson recommended amputation
of this toe, which was performed on November 17, 2016.

       Mr. Dyer filed a Petition for Benefit Determination seeking medical and
temporary disability benefits. The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice. Mr. Dyer
filed a Request for Expedited Hearing and asked the Court to issue a ruling based on a
review of the file without an evidentiary hearing. The Court issued a Docketing Notice
on September 27, 2016, identifying the documents it received for review and advising the
parties that they had until October 7, 2016, to object to the admissibility of any of those
documents. However, because USPS tracking showed that Mr. Morris did not receive the
Docketing Notice until October 7, the Court extended the date for him to respond to the
notice until October 14. Mr. Morris filed no response.

      In his affidavit, Mr. Dyer alleged he suffered an injury in the course of his work
for Mr. Morris on April 13, 2015. He contends that Mr. Morris had no workers’
compensation insurance and provided no medical treatment or other workers’
compensation benefits.

                       Findings of Fact and Conclusions of Law

      The following legal principles govern this case. Because this case is in the posture
of an Expedited Hearing, Mr. Dyer need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9

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(Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). Instead, he must come forward with
sufficient evidence from which this court can determine he is likely to prevail at a hearing
on the merits. Id.; Tenn. Code Ann. § 50-6-239(d)(1)(2015).

        Applying these principles to the facts of this case, the Court cannot find at this
time that Mr. Dyer appears likely to prevail at a hearing on the merits. It is undisputed
that Mr. Dyer was injured while working for Mr. Morris on April 13, 2015. If Mr. Morris
is an employer within the meaning of the Workers’ Compensation Law, Mr. Dyer may be
entitled to benefits. However, the Court cannot simply assume Mr. Morris is an
employer subject to the terms of workers’ compensation statute.

       Tennessee Code Annotated section 50-6-102(13) (2015) provides:

       “Employer” includes any individual, firm, association or corporation, the
       receiver or trustee of the individual, firm, association or corporation, or the
       legal representative of a deceased employer, using the services of not less
       than five (5) persons for pay, except as provided in § 50-6-902, and, in the
       case of an employer engaged in the mining and production of coal, one (1)
       employee for pay.

Tennessee Code Annotated section 50-6-902(a) further states in relevant part: “[A]ll
construction services providers shall be required to carry workers’ compensation
insurance on themselves. The requirement set out in this subsection (a) shall apply
whether or not the provider employs fewer than five (5) employees.”

       Nothing in Mr. Dyer’s affidavits or any of the other materials submitted address
the question of whether Mr. Morris employed at least five persons for pay at the time of
the accident. Similarly, the Court received no information as to whether Mr. Morris was
a “construction services provider” as contemplated by section 50-6-902(a). In the
absence of any information regarding Mr. Morris’ business, the Court cannot find Mr.
Dyer is likely to meet his burden of proving entitlement to workers’ compensation
benefits.

       Therefore, as a matter of law, Mr. Dyer has not come forward with sufficient
evidence from which this Court concludes that he is likely to prevail at a hearing on the
merits. His request for medical and temporary disability benefits is denied at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr.Dyer’s claim against Mr. Morris for the requested benefits is denied.

   2. This matter is set for an Initial (Scheduling) Hearing on December 6, 2016, at 9:00
      a.m.

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      ENTERED this the 18th day of October, 2016.


                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-
874-0473 to participate.

       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. All conferences are set using Central Time (CT).


Right to Appeal:

       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
      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

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   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

Exhibits:
   1. Affidavits of Mr. Dyer,
   2. Erlanger Medical Center Billing Records,
   3. Southern Tennessee Medical Center Emergency Room Bill,
   4. Rural Metro Billing Record,
   5. Southern Tennessee Medical Center Billing Records,
   6. Southern Tennessee Medical Center Medical Records, and
   7. Erlanger Health System Medical Records.

Technical record:
   1. Petition for Benefit Determination,
   2. Dispute Certification Notice, and
   3. Request for Expedited Hearing.




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                               CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
 Denying Requested Benefits was sent to the following recipients by the following
 methods of service on this the 18th day of October, 2016.


Name               Certified   Via   Fax        Via     Address
                   Mail        Fax   Number     Email

Joseph E. Ford,                                     X   Joseph.ford@mcbeeandford.com
Attorney                                                cc:
                                                        christine.mcgill@mcbeeandford.co
                                                        m
Johnny Morris,        X                                 Morris Logging
Employer                                                210 Morris Farm Land
                                                        Hillsboro, TN 37342




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




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