                    COURT OF WORKERS’ COMPENSATION CLAIMS
                      DIVISION OF WORKERS' COMPENSATION


EMPLOYEE: STEVEN DAVIS                                    DOCKET NO. 2014-05-2009

                                                          STATE FILE NO. 69007-2014

EMPLOYER: RW’s TREE SERVICE                               DATE OF INJURY: August 11, 2014
AND STUMP REMOVAL

INSURANCE CARRIER: FREESTONE INSURANCE COMPANY



                                EXPEDITED HEARING ORDER

        THIS CAUSE came before the undersigned Workers' Compensation Judge upon the Request
for Expedited Hearing filed by Steven Davis (Employee) pursuant to Tennessee Code Annotated
section 50-6-239. Employee has requested an on the record determination pursuant to Rule 0800-02-
21-.14(1)(c) of the Tennessee Comprehensive Rules and Regulations. Upon review of Employee’s
request, the accompanying affidavits and medical records and in consideration of the applicable law,
the Court finds that no additional information is needed to decide Employee’s request and enters the
following order for temporary disability and medical benefits.

                                                 Issues

       Employee has presented the following issues for adjudication in his request for expedited
hearing1:

            1. Whether Employer should be required to provide Employee a panel of physicians for
               treatment of an alleged work-related injury.

            2. Whether Employer should be required to provide Employee additional medical care
               as prescribed by a treating physician.



1
 The additional issues of whether Employee is entitled to an evaluation by another physician and whether
Employee provided adequate notice of the workplace accident to Employer have also been certified by the
mediator. These issues will be addressed in the analysis of the identified issues.
                                                   1
           3. Whether Employer should be required to reimburse Employee for past medical
              expenses and for mileage.

           4. Whether Employer should be required to provide Employee past and ongoing
              temporary total or temporary partial disability benefits.

                                        Evidence Submitted

       Employee filed affidavits and other evidence in support of the Request for Expedited
Hearing. The Court received and considered the following evidence submitted by Employee:

              Affidavit of Elizabeth Harris
              Affidavit of Employee
              Affidavit of Paula Davis
              Affidavit of Jimmy Robinson
              Medical bill from East Tennessee Emergency Physicians dated September 5, 2014
              Medical bill from St. Thomas Rutherford Hospital to RW Tree Service dated August
               13, 2014
              Medical bill from St. Thomas Rutherford Hospital to Steven Davis dated August 25,
               2014
              Medical Bill from Murfreesboro Radiology dated August 16, 2014
              List of working rules and regulations from RW’s Tree Service
              Pharmacy receipts
              Pay stub dated July 31, 2014
              Medical records from Concentra
              Medical Records from Premier Radiology

        RW’s Tree Service and Stump Removal (Employer) has not filed any countervailing
affidavits but has submitted information showing that its insurance carrier is being liquidated through
bankruptcy. The Court has received and considered the following evidence submitted by Employer:

              Rehabilitation and injunction order from Delaware Chancery Court
              Liquidation and injunction order with bar date from Delaware Chancery Court

                                          History of Claim

       The claim history provided below is derived from the affidavits submitted by Employee in
support of his request for temporary disability and medical benefits.

       On August 11, 2014, Employee had completed tree trimming with his co-worker, Jimmy
Robison, and was getting ready to leave when the bucket truck he was driving would not start.
Employee exited the truck and opened the truck hood to see if he could get the engine to start. While
attempting to get the truck started, Employee struck his head on a post on the front of the truck and
suffered a laceration to the right side of this head. Employee fell to the ground in a dry creek bed
                                                  2
after hitting his head.


      Either Employee or Mr. Robinson called Randy Whitehead, the owner, who came and picked
up Employee. Mr. Whitehead took Employee to a walk-in clinic but it was closed for lunch.
Employee asked if he could go to the emergency room, Mr. Whitehead declined to take Employee to
the emergency room stating that it would be too expensive. Instead, Mr. Whitehead dropped
Employee off at his home and told him to go back to the clinic after it reopened.

        At 1:00 pm, Elisabeth Harris, Employee’s paramour who was pregnant at the time, drove
Employee back to the walk-in clinic. The provider at the walk-in clinic told Employee that they did
not treat head injuries and advised him to go to the emergency room. Employee relayed this
information to Mr. Whitehead who instructed him not to go to the emergency room but, instead, to
go the Concentra Clinic.

      Upon arriving at the clinic, Employee was escorted to the examining area by a doctor while
Ms. Harris waited out front. The doctor at Concentra diagnosed Employee with a laceration to the
head.

        Both Ms. Harris and Employee claim that Mr. Whitehead instructed Concentra not to bill
Employer’s workers’ compensation insurance for the treatment as Mr. Whitehead would be paying
cash instead. After Employee received treatment and attempted to leave, a Concentra worker told
Employee that he could not leave until the bill for his services had been paid. Employee and Ms.
Harris waited until Employee’s co-worker brought the money for the bill to Concentra. He did not
arrive until almost 5:00 pm.

       While waiting for his co-worker to arrive, Employee’s pain in his head, shoulders and back
increased to the point that he became lightheaded. He also vomited several times. Employee and
Ms. Harris left the clinic. Employee went straight home and went to bed. The day after the accident,
Employee was drowsy and slept intermittently.

       On August 13, 2014, Ms. Harris took Employee to the emergency room at St. Thomas
Rutherford Hospital after becoming concerned that Employee was showing signs of a concussion.
Employee underwent a CT scan which revealed supraorbital soft tissue swelling on the right side of
Employee’s head. Employee also complained of pain in his neck and shoulders. An x-ray of
Employee’s cervical spine revealed some degenerative changes but no fractures or acute trauma.

       Employee returned to the emergency room on August 17, 2014, complaining of headaches.
Employee was released that same day and instructed to follow up with Dr. John Witt, a neurologist at
the Murfreesboro Medical Clinic, in three-to-five days. The attending physician issued restrictions
prohibiting Employee from performing any work other than light duty for three-to-five days or until
he had been seen by a neurologist.

        Employee attempted to schedule an appointment with Dr. Witt and several other neurologists
in the area but was unsuccessful because he had no insurance coverage and could not afford to pay

                                                 3
the costs out-of-pocket. Employee has still not seen a neurologist.

         Employee was billed a total of $573 for his treatment on August 13, 2014.2 He was billed
$1,262.80 for the treatment he received on August 17, 2014. In addition, Employee has presented
receipts for the purchase of medications for $17.46.3

                                        Employee’s Contentions

       Employee alleges that he has suffered a compensable workplace injury and is entitled to
temporary disability and medical benefits. He also claims that he is entitled to reimbursement for the
treatment he has received to date.

                                        Employer’s Contentions

       Neither Employer nor Employer’s insurance carrier, Freestone, have submitted a substantive
defense to Employee’s allegations. Freestone has presented orders from a Delaware State Chancery
Court showing that its assets have been ordered to be liquidated through bankruptcy.4

                              Findings of Fact and Conclusions of Law

                                             Standard Applied

        When determining whether to award benefits, the Judge must decide whether the moving
party is likely to succeed on the merits at trial given the information available. See generally,
McCall v. Nat’l Health Care Corp., 100 S.W. 3d 209, 214 (Tenn. 2003). In a workers’
compensation action, pursuant to Tennessee Code Annotated section 50-6-239(c)(6), Employee shall
bear the burden of proving each and every element of the claim by a preponderance of the evidence.
Employee must show the injury arose primarily out of and in the course and scope of employment.
Tenn. Code Ann. § 50-6-102(13).

                                             Factual Findings

       The Court finds that the Employee has suffered an injury on August 11, 2014, in the course
and scope of his employment with Employer when he was attempting to start a stalled vehicle.
Employee suffered a laceration to his head which has resulted in concussion like symptoms and

2
    Employer was also billed $3,879.30 for Employee’s treatment at the emergency room on August 13, 2014.
3
  Employee has also presented receipts for the purchase of gasoline. An employee who must travel more than
fifteen miles from their community of residence or workplace to receive treatment for a work-related injury is
entitled to reimbursement for their travel on a per mile basis. See Tenn. Code Ann. § 50-6-204(a)(6)(A)
(2014). Reimbursement for the purchase of gasoline is not allowed under the Act.
4
 The liquidation order allows for Freestone to defend claims on behalf of its insured and allows for payment of
workers’ compensation claims under a court order. Accordingly, the liquidation order has no effect on these
proceedings.
                                                      4
migraines.

       Employer knowingly failed to provide reasonable and necessary medical treatment for
Employee’s injury and has taken steps to prohibit Employee from receiving adequate care by
refusing to file the claim under Employer’s workers’ compensation insurance policy. As a result,
Employee has incurred $1,853.26 in medical and pharmaceutical bills.

       Employee has suffered an injury that requires specialized treatment from a neurologist.
Additionally, Employee cannot return to work before he has been evaluated by a neurologist.
Employee has been terminated from his employment with Employer.

        Finally, Employee has submitted a pay stub showing that he earned $341.00 for thirty-one
hours of work over the period from July 18 to July 24, 2014. Employee earned a wage of eleven
dollars ($11.00) per hour. Employer has not filed a wage statement.

                                    Application of Law to Facts

         Employee has raised several disputes for adjudication in his request for expedited hearing.
At the heart of these disputes lies the central issue of whether Employee has presented sufficient
information to establish a prima facie case of a compensable workers’ compensation injury. If this
issue is determined in Employee’s favor, the derivative disputed issues will follow. The undersigned
finds that Employee has presented sufficient information at this point to establish his case. The
undersigned finds, as further set forth below, that Employee is likely to succeed at a hearing on the
merits of his case and he is entitled to most of the temporary disability and medical benefits he has
requested.

       First, notice has been certified as a disputed issue in this case. While the undersigned is
uncertain based on the information provided why notice has been disputed, the undersigned,
nonetheless decides this issue in favor of Employee.

        The Tennessee Code provides the following concerning the provision of notice of a work-
related injury in a workers’ compensation case:

               Every injured employee or the injured employee's representative shall,
               immediately upon the occurrence of an injury, or as soon thereafter as
               is reasonable and practicable, give or cause to be given to the
               employer who has no actual notice, written notice of the injury, and
               the employee shall not be entitled to physician's fees or to any
               compensation that may have accrued under this chapter, from the date
               of the accident to the giving of notice, unless it can be shown that the
               employer had actual knowledge of the accident. No compensation
               shall be payable under this chapter, unless the written notice is given
               to the employer within thirty (30) days after the occurrence of the
               accident, unless reasonable excuse for failure to give the notice is
               made to the satisfaction of the tribunal to which the claim for

                                                  5
               compensation may be presented.

Tenn. Code Ann. § 50-6-201(a)(1) (2014). In this case, it is clear that Employer had actual notice of
Employee’s injury because Employee’s supervisor, Mr. Whitehead, picked Employee up shortly after
he suffered his injury on August 11, 2014, and took him to the walk-in clinic. Because Employer
had actual notice, Employee was not required to provide written notice of the claim.

       In order to receive temporary workers’ compensation in a pretrial setting, an employee must
show that he is likely to prevail at a trial on the merits of his claim. See McCall, 100 S.W. 3d at 214.
Under Tennessee Workers’ Compensation law, an “injury” or “personal injury” by accident is
compensable whenever “the injury is caused by a specific incident, or set of incident, arising
primarily out of and in the course and scope of employment.” Tenn. Code Ann. § 50-6-102(13)
(2014). “An injury arises primarily out of and in the course and scope of employment only if it has
been shown by a preponderance of the evidence that the employment contributed more than fifty
percent (50%) in causing the injury, considering all causes[.]” Id. (internal quotations omitted).

        In this case, Employee was attempting to restart a stalled bucket truck after completing a tree
trimming assignment. While attempting to restart the truck, Employee hit his head and suffered a
laceration to his head. The undersigned finds that these events are a direct and natural consequence
of Employee’s work duties and those duties contributed more than fifty percent (50%) in causing
Employee’s injury. Accordingly, the undersigned finds that based on the information presented at
this time, Employee is likely to prevail at a hearing on the merits of the claim.

        Having established that Employee is likely to prevail at a hearing on the merits of the claim,
the Court now turns to Employee’s request for temporary disability and medical benefits. Tennessee
law requires an employer to provide “…free of charge to the employee such medical and surgical
treatment…made reasonably necessary by accident as defined in this chapter[.]” See Tenn. Code
Ann. § 50-6-204(a)(1)(A) (2014). Upon being provided notice of a workplace injury, the employer is
required to “…designate a group of three (3) or more independent reputable physicians, surgeons,
chiropractors or specialty practice groups if available in the injured employee's community or, if not
so available, in accordance with subdivision (a)(3)(B), from which the injured employee shall select
one (1) to be the treating physician.” Id. at 50-6-204(a)(3)(A)(i).

         Here, Employee suffered a laceration to the right side of his head that has resulted in
supraorbital swelling, headaches, nausea and intermittent memory loss. The attending emergency
room physician has recommended that Employee be evaluated by a neurologist. The undersigned
finds that this treatment is reasonable and necessary and orders Employer to provide Employee with
a panel of three neurologists practicing in Employee’s community from which Employee shall select
a treating physician.

       Employee has also requested reimbursement for out-of-pocket expenses for the medical care
he sought on his own. Generally, if an employer fails to provide a panel of physicians for the
employee and the employee seeks treatment on his own, the employer would be responsible for the
reasonable and necessary medical expenses the employee incurred at the direction of the treating
physician. See Lambert v. Famous Hospitality, 947 S.W.2d 852 (Tenn. 1997). Failure to provide a

                                                   6
panel of physicians from which an employee may choose an authorized treating physician in
compliance with Tennessee Code Annotated section 50-6-204 creates the risk that an employer may
be responsible for unauthorized medical care. Violation of this section leaves the employer open to
the risk of having to pay for medical treatment by physicians chosen by the employee. Pickett v.
Chattanooga Convalescent & Nursing Home, Inc. 627 S.W.2d 941 (Tenn. 1982).

        In this case, Employer had notice of Employee’s injury and refused to provide him a panel of
physicians. After receiving little help from his Employer, Employee sought treatment on his own
and incurred significant expenses. The undersigned finds that Employee’s decision to seek treatment
on his own was reasonable under the circumstances. Accordingly, Employer is liable for payment of
the medical bills Employee incurred through treatment of his work related injury. Employee has
provided copies of bills and receipts showing $1,853.26 in treatment and pharmaceutical expenses.
The undersigned finds that Employer must reimburse Employee this amount.

        An employee is entitled to receive temporary total disability benefits pursuant to Tennessee
Code Annotated § 50-6-207(1) whenever the employee has suffered a compensable, work-related
injury that has rendered the employee unable to work. See Simpson v. Satterfield, 564 S.W.2d 953
(Tenn. 1978). Entitlement to temporary total disability benefits ends whenever an employee is able
to return to work or reaches maximum medical improvement (MMI). See id.; Cleek v. Wal-Mart
Stores, Inc., 19 S.W.3d 770, 776 (Tenn. 2000).

        In this case, Employee has been taken off work by the attending emergency room physician
until he receives a neurological evaluation and treatment, if necessary. Accordingly, the undersigned
finds that Employee is entitled to recover temporary total disability benefits from the date of injury
until he reaches maximum medical improvement.

        Having determined that Employee is entitled to receive temporary total disability benefits, the
Court now turns to the calculation of those benefits. Unfortunately, Employer has failed to timely
file a wage statement. Rule 0800-02-21-.10(3) of Mediation and Hearing Procedures governing
claims before this Court require an employer to file a wage statement detailing the employee’s wages
over the fifty-two (52) week period immediately preceding the date of injury “within three (3)
business dates of the first scheduled alternative dispute resolution proceedings.” Tenn. Comp. R. &
Regs, Chap. 0800-02-21-.10(3). Any employer who fails to file a wage statement shall be referred
for assessment of a civil penalty “by the presiding mediator.” Accordingly, the undersigned directs
the clerk to forward a copy of this order to the mediator who presided over the alternative dispute
resolution proceeding in this case so that the mediator may take appropriate action.

        Without a wage statement, the undersigned is left with little information concerning
Employee’s rate of pay from which Employee’s compensation rate may be determined. In fact, the
only information concerning Employee’s wage rate is a pay stub for one week of work. During that
week, Employee earned$341.00 resulting in a compensation rate of $227.33 per week. Employee is
hereby ordered to pay Employee past due temporary disability benefits of $3,020.24 for the period
from August 11, 2014, until the date of this order. Furthermore, Employer is ordered to continue
paying Employee $227.33 per week until Employee reaches maximum medical improvement as
determined by the authorized treating physician. These payments shall be made to Employee on a bi-

                                                  7
weekly basis.

        Employer is also ordered to file a wage statement with this Court containing the information
required by Rule 0800-02-21.10(3), as set forth above, within fourteen (14) days from the date of this
order. At that time, the undersigned will determine whether any additional temporary disability
benefits are due Employee.

 IT IS, THEREFORE, ORDERED as follows:


   1. Employer, or its Carrier, shall provide Employee with medical treatment for his injuries as
      required by Tennessee Code Annotated section 50-6-204, to be initiated by Employer or its
      workers’ compensation carrier providing Employee with a panel of neurologists. Medical
      bills for said treatment shall be furnished to Employer or its workers’ compensation carrier
      by Employee or the medical providers. Further, Employee’s past medical expenses of
      $1,853.26 shall be paid by Employer.

   2. The amount of temporary disability benefit is $227.33 per week based on Employee’s
      average weekly wage of $341.00.

   3. Payment of past due benefits in the amount $3,020.24 of shall be made for the period from
      August 11 to October 24, 2014

   4. Employer shall file a wage statement with the Court within fourteen (14) days of the date of
      this order. At that time, the undersigned will issue an additional order concerning the
      amount of temporary total disability payments if necessary.

   5. Employer or its workers’ compensation insurance carrier shall continue to pay to Employee
      temporary disability benefits in regular intervals until Employee is no longer eligible for
      those benefits by reaching maximum medical improvement, by returning to work, or by
      release without restrictions by the authorized treating physician. Employer’s representative
      shall notify the Division, Employee and Employee’s counsel, if any, in writing immediately
      by filing Form C-26 of Employer’s intent to terminate temporary disability benefits, citing
      the basis for the termination.

   6. This matter is set for Initial Hearing via teleconference on November 10, 2014, at 10 a.m.
      (CDT). Instructions on how to participate in the teleconference are included below.

   7. The clerk is instructed to provide a copy of this order to the Mediating Specialist so that the
      Specialist may refer Employer for assessment of a civil penalty for Employer’s failure to file
      a wage statement within the timeframe provided by Rule 0800-02-21-.10(3) of the Tennessee
      Comprehensive Rules and Regulations.

   8. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with
      this Order must occur no later than seven (7) business days from the date of entry of

                                                  8
       this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The
       Insurer or Self-Insured Employer must submit confirmation of compliance with this
       Order to the Division by email to WCCompliance.Program@tn.gov no later than the
       seventh (7th) 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.

   9. For questions regarding compliance, please contact the Workers’ Compensation Compliance
      Unit via email WCCompliance.Program@tn.gov or by calling (615) 253-1471 or (615) 532-
      1309.




                                            _____________________________________
                                            Joshua Davis Baker
                                            Workers' Compensation Judge

Initial Hearing:

        An Initial Hearing has been set with Judge Joshua Davis, Court of Workers
Compensation Claims. You must call (615) 741-2113 or toll free at (855) 874-0474 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. 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 (7) business days of the date the
      Expedited Hearing Order was entered by the Workers’ Compensation Judge.

   3. Serve a copy of the Request for Appeal upon the opposing party.




                                               9
                                   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 24th day of October, 2014.


Name                   Certified   First    Via    Fax       Via     Email Address
                       Mail        Class    Fax    Number    Email
                                   Mail
Steven Davis                                                 x       bullbeth83@aol.com
Charles Winters                                              x       Charles.winters@freestoneinsuran
                                                                     ce.com
 RW’s Tree Service                 x
and Stump Removal




                                                       _____________________________________
                                                       Joshua Davis Baker
                                                       Workers' Compensation Judge




                                                  10
