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

Evodio Davila,                                                )    Docket No.: 2015-08-0465
            Employee,                                         )
v.                                                            )    State File No.: 29117-2015
Diversified Builders, Inc.,                                   )
             Employer,                                        )    Judge: Jim Umsted
And                                                           )
Builders Mutual Insurance,                                    )
             Insurance Carrier.                               )


          EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


       This case came before the undersigned Workers' Compensation Judge on
September 20, 2016, upon the Request for Expedited Hearing filed by the employee,
Evodio Davila, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The
present focus of this case is whether the employer, Diversified Builders, Inc., must
provide additional medical and temporary disability benefits for Mr. Davila's alleged
work-related injuries. The central legal issue is whether Mr. Davila can demonstrate a
likelihood of success at a trial on the merits on these issues. For the reasons set forth
below, the Court holds Mr. Davila is unlikely to succeed at a hearing on the merits in
proving entitlement to the requested benefits. 1

                                                  History of Claim

       The following facts were established at the Expedited Hearing. Mr. Davila is a
forty-six-year-old resident of Shelby County, Tennessee. He claimed he sustained
multiple injuries after falling from a walk board while working for Diversified Builders
on April9, 2015.

       After the accident, Diversified Builders provided Mr. Davila with a panel of
physicians from which he selected D.r. Nahum Beard from Campbell's Clinic as his

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

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    treating physician. Dr. Beard oversaw medical care for Mr. Davila's left knee injury,
    treating the knee conservatively with physical therapy and medication. However, he
    referred Mr. Davila to specialists for his other injuries, which included a head injury and
    left shoulder injury, among others.

        In a prior Expedited Hearing Order issued on May 10, 2016, this Court required
Mr. Davila to provide a list of his medical providers for the previous ten years to
Diversified Builders so it could obtain a complete set of medical records to supply to Dr.
Beard. It also ordered Diversified Builders to schedule an appointment with Dr. Beard to
examine Mr. Davila, review all relevant medical records, and treat injuries he found
compensable. Thereafter, Diversified Builders scheduled a follow-up appointment for
Mr. Davila with Dr. Beard, and Dr. Beard ordered a series of injections for Mr. Davila's
left knee. On July 21, 2016, Mr. Davila was scheduled for the third injection in the
series, but he had a family emergency arise that required him to leave the country prior to
his appointment. Due to Mr. Davila's failure to attend the appointment, Diversified
Builders stopped his benefits, citing medical non-compliance. 2 Mr. Davila filed a new
Request for Expedited Hearing on August 12, 2016, based on this termination of his
benefits.

        Immediately prior to the Expedited Hearing held on September 20, 2016, the
Court heard Mr. Davila's Motion for Sanctions for Failure to Pay Weekly Compensation
and Creating Undue Delay of Proceedings 3 as well as Diversified Builders' Motion for
Sanctions for Failure to Comply with Order. Mr. Davila asked for sanctions under Rule
11 of the Tennessee Rules of Civil Procedure and 28 United States Code section 1927,
arguing that Diversified Builders was causing undue delay in the proceedings through its
filings and discovery. Diversified Builders sought sanctions for Mr. Davila's failure to
provide a complete list of medical providers per the Court's May 10, 2016 order. The
Court took both of these motions under advisement.

       During the hearing, Mr. Davila specifically requested the Court to order
Diversified Builders to pay ongoing temporary disability benefits from July 21, 2016. He
also asked the Court to require Diversified Builders to pay the medical bills associated
with an unauthorized visit to St. Francis Hospital on June 1, 2016. He claimed this visit
related to his April 9, 2015 fall because he developed a rash down his left leg after his
authorized physical therapist put black tape on his leg to stabilize his knee.



2
  Diversified Builders reinstated Mr. Davila's benefits upon his return to Dr. Beard for the third injection in August
2016. However, the parties submitted no medical records to show the exact date Mr. Davila returned to Dr. Beard
for treatment.
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  The Court also heard Mr. Davila's Motion to Determine Compensability of Medical Treatment, which the Court
determined should be decided as part of the Expedited Hearing. It involved unauthorized medical treatment Mr.
Davila obtained at St. Francis Hospital on June I, 2016.

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        Diversified Builders argued it has paid for all authorized treatment recommended
by Dr. Beard and has reinstated Mr. Davila's temporary disability benefits. It further
contended Mr. Davila offered no medical proof that his June 1, 2016 treatment for
cellulitis at St. Francis Hospital causally related to his work injury of April 9, 2015.

                       Findings of Fact and Conclusions of Law

                                General Legal Principles

       At an Expedited Hearing, Mr. Davila need not prove every element of his claim by
a preponderance of the evidence in order to recover temporary disability and/or medical
benefits. 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).
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. !d.; Tenn. Code Ann. § 50-6-
239(d)(1) (2015). 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). In analyzing whether
he has met his burden, the Court will not remedially or liberally construe the law in his
favor, but instead shall construe the law fairly, impartially, and in accordance with basic
principles of statutory construction favoring neither Mr. Davila nor Diversified Builders.
See Tenn. Code Ann. § 50-6-116 (2015).

       Mr. Davila's Motion for Sanctions for Failure to Pay Weekly Compensation
                      and Creating Undue Delay ofProceedings

       Based on the statements of counsel and the evidence presented, the Court holds
Diversified Builders did not fail to pay weekly compensation or create an undue delay of
the proceedings. Therefore, the Court denies Mr. Davila's motion for sanctions.

    Diversified Builders' Motion for Sanctions for Mr. Davila's Failure to Provide a
       Complete List of Medical Providers (per the Court's May 10, 2016 order)

       Based on the statements of counsel and the evidence presented, the Court holds
Mr. Davila and his counsel made a good faith effort to comply with the Court's prior
order. The Court believes Mr. Davila's testimony where he stated he provided a list of all
the medical providers he could remember. He admitted he may not remember all of his
past physicians, but he believes he listed most of them. Therefore, the Court denies
Diversified Builders' request for sanctions.


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                                     Medical Benefits

       Pursuant to Tennessee Code Annotated section 50-6-204(a)(l)(A) (2015), "the
employer or the employer's agent shall furnish, free of charge to the employee, such
medical and surgical treatment ... made reasonably necessary by accident as defined in
this chapter." It is traditionally the employee's burden "to offer expert medical proof of
causation ' [e]xcept in the most obvious, simple and routine cases."' Scott v. Integrity
Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015) (citing Cloyd v. Hartco Flooring Co., 274
S.W.3d 638, 643 (Tenn. 2008)).

        The Court will first consider Mr. Davila's request to require Diversified Builders
to pay the medical bills associated with an unauthorized visit to St. Francis Hospital on
June 1, 2016. He claimed this visit related to his April 9, 2015 fall because he developed
a rash down his left leg after his authorized physical therapist put black tape on his leg to
stabilize his knee. The Court finds Mr. Davila provided no medical evidence at the
Expedited Hearing to establish a causal connection between this treatment and the work
injury. Therefore, the Court holds he is not likely to prevail at a hearing on the merits on
this issue.

       The Court will next consider Mr. Davila's request for medical treatment with other
specialist physicians. Mr. Davila is currently treating with Dr. Beard and the Court will
not disturb that status. The Court finds Mr. Davila presented no medical evidence at the
Expedited Hearing showing he is entitled to any other medical treatment. Therefore, the
Court holds he is not likely to prevail at a hearing on the merits on this issue.

                              Temporary Disability Benefits

       Mr. Davila claimed entitlement to a period of temporary disability benefits while
he was out of the country on personal business, and not receiving scheduled medical
treatment. An 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. Simpson v. Satterfield, 564 S.W.2d 953, 955
(Tenn. 1978). According to Tennessee Code Annotated section 50-6-204(b)(8) (2015), if
an injured employee refuses to accept the medical services provided by the employer, the
injured employee's right to compensation shall be suspended while the injured employee
continues to refuse.

       Mr. Davila submitted no medical proof to support his claim for additional
temporary disability benefits. Diversified Builders stated it has provided all temporary
disability benefits due and will continue paying temporary disability benefits which may
become due pursuant to treatment with Dr. Beard. However, citing medical non-

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compliance, Diversified Builders stopped paying temporary disability benefits July 21,
2016, when Mr. Davila missed a scheduled a scheduled third injection by Dr. Beard due
to leaving the country for a "family emergency." He returned a few weeks later and
received the third injection. Diversified Builders agreed to resume payment of temporary
disability benefits on the date Mr. Davila returned and received the third injection. Based
on the above legal principals, the Court determines Mr. Davila is not entitled to
temporary disability benefits while he is out of the country attending to personal business,
and not receiving scheduled medical treatment. Therefore, the Court holds Mr. Davila
has failed to show he is likely to prevail at a hearing on the merits on this issue.


       IT IS, THEREFORE, ORDERED as follows:

    1. Mr. Davila's claim against Diversified Builders for the requested medical and
       temporary disability benefits is denied at this time.

   2. This matter is set for a Status Hearing on December 12, 2016, at 10:00 a.m.
      Central time.

       ENTERED this the 26th day of September, 2016.



                                   Judge Jim Umsted
                                   Court of Workers' Compensation Claims

Status Conference:

       A Status Conference has been set with Judge Jim Umsted, Court of Workers'
Compensation Claims. You must call 615-532-9550 or toll-free at 866-943-0014 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
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:


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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
   lndigency 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


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          statement of the issue(s) presented for review; and (4) an argument, citing
          appropriate statutes, case law, or other authority.
                                           APPENDIX

    Exhibits:
       1. Form C-42 Agreement Between Employer/Employee Choice of Physician, dated
           April 26, 20 15;
       2. Form C-42 Agreement Between Employer/Employee Choice of Physician, dated
           October 6, 20 15;
       3. Mr. Davila's list of medical providers for the past ten years;
       4. Collective exhibit of photographs of Mr. Davila's left knee;
       5. Medical records from St. Francis Hospital, dated June 1, 2016;
       6. Medical bill from St. Francis Hospital for date of service June 1, 2016;
       7. Medical record from St. Francis Hospital, dated April11, 2010; and
       8. Intake form from St. Francis Hospital, dated April11, 2010.

Technical record: 4
   1. Petition for Benefit Determination, filed October 6, 2015;
   2. Dispute Certification Notice, filed on November 10, 2015;
   3. Petition for Benefit Determination, filed November 17, 2015;
   4. Dispute Certification Notice, filed on December 7, 2015;
   5. Expedited Hearing Order for Medical Benefits, filed May 10, 20 16;
   6. Request for Expedited Hearing, filed August 12, 2016;
   7. Mr. Davila's Motion for Sanctions for Failure to Pay Weekly Compensation and
       Creating Undue Delay of Proceedings filed August 12, 2016;
   8. Diversified Builders' Motion for Sanctions for Failure to Comply with Order, filed
       August 22, 2016;
   9. Diversified Builders' Response to Mr. Davila's Motion for Sanctions for Failure to
       Pay Weekly Compensation and Creating Undue Delay of Proceedings, filed
       August 31, 2016;
   10. Mr. Davila's Motion to Determine Compensability of Medical Treatment, filed
       September 7, 2016;
   11. Diversified Builders' Response to Mr. Davila's Motion to Determine
       Compensability ofMedical Treatment, filed September 13, 2016;
   12.Diversified Builders' Pre-Hearing Brief, filed September 13, 2016; and
   13. Diversified Builders' Supplemental Pre-Hearing Brief, filed September 19, 2016.




4
   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.


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                           CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing was sent to the
 following recipients by the following methods of service on this the 27th day of
 September, 2016.


Name                        Certified   Via   Via   Email Address
                            Mail        Fax   Email
Marilyn Sellers-Hobbs,                          X   mhobbs@bellsouth.net
Employee's Attorney
Carolina Martin,                                X     carol ina.martin@Retersonwhite.com
Employer's Attorney



                                 Penny Patterson-Shrum, Clerk
                                 Court of Workers' Compensation Claims
                                 WC.CourtClerk@tn.gov




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