                                                                                FILED
                                                                              Jan 25, 2019
                                                                              01:16 PM(CT)
                                                                           TENNESSEE COURT OF
                                                                          WORKERS' COMPENSATION
                                                                                 CLAIMS




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

Philip Welsh,                               ) Docket No. 2017-06-2158
            Employee,                       )
v.                                          ) State File No. 91361-2017
Kevin Bowling, d/b/a Tri-Star Home          )
Solutions, LLC,                             ) Judge Kenneth M. Switzer
             Uninsured Employer.            )


                       COMPENSATION HEARING ORDER



       This case came before the Court on January 24 for a compensation hearing. The
legal issues are the compensability of Mr. Welsh's claim from injuries suffered while
working for Kevin Bowling, d/b/a Tri-Star Home Solutions, and the extent of Mr.
Welsh's permanent impairment. The Court holds his claim is compensable and he
suffered a twenty-five percent impairment, and it awards lifetime medical benefits and
permanent partial disability benefits totaling $75,037.50

                                    History of Claim

       Mr. Bowling hired Mr. Welsh as a full-time laborer for his home construction
business for $25 per hour. On October 20, 2017, Mr. Welsh fell approximately fifteen
feet from a roof to the concrete below, injuring his wrist, head and spine. Dr. Jaron
Sullivan surgically repaired the wrist fracture the following day. After recovering from
surgery, Mr. Welsh participated in physical therapy for his spinal fracture. He remained
off work until January 24, 2018, when Dr. Sullivan returned him to work. Mr. Welsh
ultimately returned to work with a different employer.

       Communications between Mr. Welsh and Mr. Bowling deteriorated after the
accident, as Mr. Welsh realized that his employer had no insurance on the date of injury.
He filed a Petition for Benefit Determination, which prompted the Bureau's Compliance
Unit to investigate the injury and Mr. Bowling's insurance coverage on the date of injury.
The investigator reported that Mr. Bowling had workers' compensation in the past and at

                                            1
the time of the report, but "his insurance had lapsed, so he had no coverage when the
accident happened." Mr. Bowling's carrier filed a Notice of Denial, which confirmed,
"This claim is denied for no policy in effect for accident." 1

       The investigator further stated that Mr. Welsh suffered an injury arising primarily
out of and in the course and scope of his employment after July 1, 2015; he was a
Tennessee resident on the date of injury; and he provided notice of his injury and Mr.
Bowling's lack of insurance to the Bureau within sixty days of the injury. Mr. Bowling
did not return the investigator's call, nor did he file any documents to dispute these
findings.

       Ultimately, the medical providers did not charge Mr. Welsh for the bulk of his
treatment. The Court held an expedited hearing and afterward ordered Mr. Bowling to
reimburse Mr. Welsh for past out-of-pocket medical care and mileage in the amounts of
$537.99 and $90.71, respectively. The Court additionally ordered past temporary total
disability benefits from the time of injury until January 24, 2018. Mr. Bowling did not
attend the expedited hearing, nor did he appeal the order, but he has communicated with
the Court Clerk twice via e-mail regarding the case. In the order, the Court also referred
the case to the Bureau's Uninsured Employers Fund.

       Mr. Welsh testified that Dr. Sullivan declined to assign an impairment rating, so
he asked his family care physician to provide a rating. He filed a Form C-32, Standard
Form Medical Report, in which Dr. Geoffrey Lifferth placed him at maximum medical
improvement on October 10, 2018, and assigned a twenty-five percent whole-body
impairment. The report concluded that Mr. Welsh's employment was more likely than
not primarily responsible for his injury and need for treatment of a preexisting condition.
He placed permanent restrictions and concluded that the injury would require future
treatment.

       Mr. Welsh has not received payment from Mr. Bowling for his out-of-pocket
medical expenses. Rather, the Uninsured Employers Fund reimbursed him for $504.26
and it paid temporary total disability benefits in the amount of $9,051.36? Mr. Welsh
requested open medical benefits as well as permanent partial disability benefits.

                             Findings of Fact and Conclusions of Law

      Mr. Welsh must prove all elements of his case by a preponderance of the evidence.
Tenn. Code Ann.§ 50-6-239(c)(6) (2018).

1
 The post-discovery Dispute Certification Notice erroneously listed Travelers Indemnity Company as the
carrier; the Court found after the expedited hearing that Mr. Bowling was uninsured on the date of injury.
Travelers is not a party to this case.
2
    The Fund did not reimburse Mr. Welsh for past mileage but might do so in the future.

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       As the threshold issue, Mr. Welsh must prove the compensability of his claim.
Specifically, he must show he suffered "an injury by accident ... arising primarily out of
and in the course and scope of employment." Tenn. Code Ann. § 50-6-102(14). If he
establishes an injury, then Tennessee Code Annotated section 50-6-204(a)(l)(A) requires
"[t]he employer or the employer's agent [to] furnish, free of charge to the employee, such
medical ... treatment ... made reasonably necessary by accident[.]"

       Mr. Welsh testified that he fell approximately fifteen feet to the concrete while
working for Mr. Bowling, resulting in severe injuries. The C-32 stated that Mr. Welsh's
employment was "more likely than not, primarily responsible for the injury or primarily
responsible for the need for treatment." Mr. Bowling failed to file any documents to
defend the claim, nor did he appear at the hearing. Mr. Bowling twice communicated
with the Court Clerk regarding this case; the Court finds he had notice of the claim
against him but declined to defend himself or his business. Thus, Mr. Welsh's testimony
and documentary evidence are undisputed. The Court holds Mr. Welsh demonstrated by
a preponderance of the evidence that he suffered an injury arising primarily out of and in
the course and scope of his employment.

        Having held that Mr. Welsh suffered a compensable injury, under section 50-6-
204, Mr. Bowling remains responsible for future reasonable and necessary treatment for
the work-related injury with Dr. Lifferth. Mr. Welsh received no payment as ordered by
this Court from Mr. Bowling. The Court reasonably believes Mr. Bowling might
continue this pattern of nonpayment. Under Tennessee Code Annotated section 50-6-
802(e)( 1), the Bureau's Administrator has discretion to pay medical benefits from the
Uninsured Employers Fund to employees who have established medical causation of
their injury and meet the statutory criteria.

      The Court adopted the findings contained in the Bureau's Investigation Report in
the Expedited Hearing Order. Based on the testimony and evidence introduced at the
previous hearing, the Court found:

      (1) Mr. Bowling failed to carry workers' compensation insurance;
      (2) Mr. Welsh suffered an injury arising primarily out of and in the course and
          scope of employment after July 1, 2015;
      (3) Mr. Welsh was a Tennessee resident on October 20, 2017, the date of injury;
      (4) Mr. Welsh provided notice to the Bureau of the injury and Mr. Bowling's
          failure to provide workers' compensation insurance within sixty days after the
          injury occurred; and
      (5) Mr. Welsh was entitled to past and on-going medical benefits.

Thus, the Court holds he met the statutory criteria to receive medical benefits from the
Uninsured Employers Fund, subject to the Administrator's discretion and limits within

                                            3
the statute. See Tenn. Code Ann. § 50-6-801(d)(l)-(4).

       Finally, an employee who establishes a partial disability from a compensable
permanent injury is entitled to payment of permanent partial disability benefits for the
number of weeks calculated by multiplying the applicable impairment rating by 450
weeks. Tenn. Code Ann. § 50-6-207(3)(A). These benefits are paid at the weekly
compensation rate whether or not the employee returns to work. !d. The Workers'
Compensation Law refers to this as the original award. Dr. Lifferth assigned a twenty-
five percent impairment rating to the whole body. As established at the expedited
hearing, Mr. Welsh's weekly compensation rate is $667, which was unrebutted.
Therefore, the Court finds he sustained a twenty-five percent permanent partial
impairment. This equates to an original award of $75,037.50.

        IT IS, THEREFORE, ORDERED as follows:

1.      Mr. Welsh is awarded a judgment against Mr. Bowling for temporary total
        disability benefits in the amount of $9,051.36, the sum previously paid by the
        Uninsured Employers Fund.

2.      Mr. Welsh is awarded a judgment against Mr. Bowling for permanent partial
        disability benefits in the amount of$75,037.50.

3.      Mr. Bowling shall provide future medical benefits under Tennessee Code
        Annotated section 50-6-204(a)(1)(A) with Dr. Lifferth as the treating physician.

4.      Mr. Bowling shall pay $150.00 costs to the Court Clerk within five business days
        under Tennessee Compilation Rules and Regulations 0800-02-21-.07.

5.      Mr. Welsh shall prepare and submit a Statistical Data Form (SD2) within five
        business days of this order becoming final.

6.      Absent an appeal, this order shall become final thirty days after issuance.




3
  Twenty-five percent times 450 weeks equates to an initial compensation period of 112.5 weeks, times
$667 is $75,037.50. Mr. Welsh reached maximum medical improvement on October 10, 2018. If at the
expiration of the initial compensation period occurring on December 6, 2020, he has not returned to work
with any employer or has returned to work at a lower rate of pay than he received from Mr. Bowling on
the date of injury, Mr. Welsh may file a Petition for Benefit Determination to determine whether he is
entitled to increased benefits under the factors in Tennessee Code Annotated section 50-6-207(3)(8). Mr.
Welsh must file the Petition for Benefit Determination within one year after the initial
compensation period expires on December 6, 2020.

                                                   4
      ENTERED January 25, 2019.




                                 Court of Workers' Compe ation Claims


                                     APPENDIX

Evidence:
   1. Affidavit of Philip Welsh and attachments
   2. Affidavit of Phillip Graves and attachments
   3. FROI
   4. Denial
   5. Expedited Request for Investigation Report
   6. C-32

Technical Record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice, March 9, 2018
   3. Request for Expedited Hearing
   4. Certified mail receipt: Notice of hearing delivered to Mr. Bowling
   5. Email exchange between Mr. Bowling and Court Clerk, July 18,2018
   6. Expedited Hearing Order Granting Requested Relief
   7. Email exchange between Mr. Bowling and Court Clerk, July 20, 2018
   8. Order Setting Status Conference
   9. Order on Status Conference
   10. Order Referring the Case to mediation and Continuing Compensation Hearing
   1l.Dispute Certification Notice, January 18, 2019




                                           5
                           CERTIFICATE OF SERVICE

       I certify that a copy of the Compensation Hearing Order was sent to the following
recipients by these methods of service on January 25, 2019.

         Name             Certified    Via         Via         Service sent to:
                           Mail        Fax        Email
Philip Welsh,                X                      X          117 Maureen Dr.
Self-represented                                               Hendersonville, TN 37075
employee                                                       welshjrp@comcast.net
Kevin Bowling,                X                     X          731 Lovers Lane
Self-represented                                               Lebanon TN 3 7087
employer                                                       Kevinbowling 1026@gmail.com

LaShawn Pender,                                     X          Lashawn.pender@tn.gov
UEF
Courtesy Copy Only



                                                 ' f)          ))vilk-- '
                                        PE~ ,                 UM, Court Clerk
                                        WC.Cour         (j   lerk@tn.gov




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                                 II
                                  I                                                       'I



                          Compensation Hearing Order Right to Appeal:

     If you disagree with this Compensation Hearing Order, you may appeal to the Workers'
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers'
Compensation Appeals Board, you must:

    1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal," and file
       the form with the Clerk of the Court of Workers' Compensation Claims within thirty
       calendar days of the date the compensation hearing order was filed. When filing the
       Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
       represented).

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau's
      website or any Bureau office) seeking a waiver ofthe filing fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of lndigency will
      result in dismissal of your appeal.

   3~   You bear the responsibility of ensuring a complete record on appeal. You may request
        from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
        reporter must prepare a transcript and file it with the court clerk within fifteen calendar
        days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
        evidence prepared jointly by both parties within fifteen calendar days of the filing of the
        Notice of Appeal. The statement of the evidence must convey a complete and accurate
        account of the hearing. The Workers' Compensation Judge must approve the statement
        of the evidence before -the record is submitted to the Appeals Board. If the Appeals
        Board is called upon to review testimony or other proof concerning factual matters, the
        absence of a transcript or statement of the evidence can be a significant obstacle to
        meaningful appellate review.

   4. After the Workers' Compensation Judge approves the record and the court clerk transmits
      it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
      party has fifteen calendar days after the date of that notice to submit a brief to the
      Appeals Board. See the Practices and Procedures of the Workers' Compensation
      Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
II                                                                                                                      I.
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                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                      800-332-2667

                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ __ _ _ _ _ __                       2. Address: - - - - - - - -- - - --

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - -- - - -- -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -

             - - - - - - - - - - - - - -- --                  Relationship: - - - - - -- - - -- - -

             - - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - -- - - -- -

     6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -

             My employer's address is: - - - - -- - - - -- - - - - - -- - -- - - - -

             My employer's phone number is: - - - -- - - - -- - - - - - -- - - -- - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ __

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are:     ! ~                                                      li
                                                                                  I
                          '

        Rent/House Payment $              per month     Med icai/Dental $ _ _ ___ per month

        Groceries       $           per month           Telephone       $ _ __ _ _ per month
        Electricity     $           per month           School Supplies $ _ _ _ _ _ per month
        Water           $           per month           Clothing        $ _ _ _ _ _ per month
        Gas             $           per month           Child Care      $ _ _ _ _ _ per month
        Transportation $            per month           Child Support   $ _ _ _ _ _ per month
        Car             $            per month
        Other           $           per month (describe:


10. Assets:

        Automobile              $ _ _ _ __
                                                        (FMV) - - - - - - - - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ __
                                                        (FMV) - - - - - - - - - -
        Other                   $ _ _ _ __              Describe:_ _ _ _ __ _ __ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

____ dayof _____________________ , 20_ __




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ _ __




LB-1108 (REV 11/15)                                                                          RDA 11082
