                                                                                 FILED
                                                                            December 1,.20 17.

                                                                               1N COURT OF
                                                                        1\ ORKI.RS' COJ!.IP,lNSATION
                                                                                  C1 ..ill!S

                                                                                Tim.eo ll:l9•PM

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

DARYL HOLMES,                                )   Docket No.: 2017-08-0504
        Employee,                            )
v.                                           )   State File No.: 31584-2017
ELLIS WATKINS d/b/a WATKINS                  )
LAWN CARE,                                   )   Judge Deana Seymour
        Uninsured Employer.                  )
                                             )


                          EXPEDITED HEARING ORDER


       This matter came before the Court on November 8, 2017, for an Expedited
Hearing. The central legal issue is whether Mr. Holmes is likely to establish at a hearing
on the merits that he is entitled to medical and/or temporary disability benefits for his
right-hand injury. For the reasons set forth below, the Court finds Mr. Holmes came
forward with sufficient evidence to show that he is entitled to medical benefits in the
form of a panel of physicians. However, he did not show entitlement to past medical
expenses or temporary disability benefits at this time.

                                   History of Claim

       Mr. Holmes, a Memphis resident for thirty years, cut his right hand at work on
March 17, 2017. However, Mr. Holmes claimed that Watkins did not provide him with a
panel of physicians or return him to work after his injury.

        Following the injury, Mr. Watkins drove Mr. Holmes to Methodist South Hospital
for treatment. The hospital transferred him to Methodist University Hospital for surgery.
Mr. Holmes' attending physician diagnosed him with a lacerated tendon and hospitalized
him until March 20. According to Mr. Holmes, he .underwent physical therapy and
received treatment from Christ Community Health Services after discharge. He did not
file medical records regarding that treatment.



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       The Bureau's compliance section initiated an investigation on May 5. 1 The
Bureau's report classified Watkins as a landscaping business and a Construction Service
Provider (CPS). At the time of Mr. Holmes' injury, Watkins was uninsured. After
interviewing Mr. Holmes and Mr. Watkins, the investigator concluded that the parties
agreed on the date, time, location, and type of injury. The parties disagreed on the
number of employees Watkins had at the time of Mr. Holmes' injury. The investigator
concluded that Watkins did not have the workers' compensation insurance it was required
to obtain.

       At the hearing, Mr. Holmes introduced medical bills from multiple providers and
photographs of his right hand taken the day of his injury, but he only presented one
medical note. While his pay varied each week, he estimated he worked thirty hours per
week for $8.00 per hour. Mr. Watkins testified that he had more than one but less than
five employees on the day Mr. Holmes was injured. He stated that he believed Mr.
Holmes intentionally cut his hand which Mr. Holmes denied?

                           Findings of Fact and Conclusions of Law

        To grant the relief Mr. Holmes seeks, the Court must apply the following legal
principles. Mr. Holmes bears the burden of proving all elements of his workers'
compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2017). However, he need not
prove every element of his claim by a preponderance of the evidence in order to obtain
relief at this Expedited Hearing. McCord v. Advantage Human Resourcing, 2015 TN
Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (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)(l).

                                    Employment Relationship

       This Court initially must address whether Watkins is Mr. Holmes' "employer" as
defined by Tennessee Workers' Compensation Law. An employer is "any individual ...
using the serviCes of not less than five .(5) persons for pay, except as provided in § 50~6-
902." Tenn. Code Ann. § 50-6-102 (13). However, CSPs are employers "whether or not
the provider employs fewer than five (5) employees." Tenn. Code Ann. § 50-6-902(a).

       The Bureau's report classified Watkins as a landscaping business and a CSP. See
Tenn. Code Ann.§ 50-6-901(5). Therefore, the Tennessee Workers' Compensation Law only
required Watkins to have one employee to meet the definition of "employer." Watkins
confirmed he had more than one employee; so, he qualified as Mr. Holmes' employer.

1
    The Bureau prepared an "Expedited Request for Investigation Report" to determine whether Mr.
Holmes met the criteria of the Uninsured Employers Fund to qualify as an eligible employee. The parties
stipulated to the report, and the Court admitted it into evidence.
2
  No evidence was presented regarding that issue.

                                                  2
                                     Medical Benefits

       The Court turns to the requested medical benefits. The Workers' Compensation
Law provides, "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." Tenn. Code Ann. § 50-6-204(a)(1)(A); see also § 50-
6-204(b)(l). Further, "in any case when the employee has suffered an injury and
expressed a need for medical care, the employer shall designate a group of three (3) or
more independent reputable physicians, surgeons, chiropractors or specialty practice
groups . . . from which the injured employee shall select one (1) to be the treating
physician." Tenn. Code Ann. § 50-6-204(a)(3). Conversely, an employer who elects to
deny a claim runs the risk that it will be held responsible for medical benefits obtained
from a medical provider of the employee's choice and/or that it may be subject to
penalties for failure to provide a panel of physicians and/or benefits in a timely manner.
McCord, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *10.

       Here, the Court finds that Mr. Holmes came forward with sufficient evidence to
demonstrate he is likely to prevail at a hearing on the merits as to his entitlement to a
panel of physicians from which he may choose a treating physician. The parties agreed to
the date, time, location and type of injury Mr. Holmes sustained to his right hand.
Therefore, this Court holds Watkins shall provide Mr. Holmes with a panel of physicians
as required by Tennessee Code Annotated section 50-6-204(b)(1).

      The Court further holds that Mr. Holmes did not present sufficient evidence to
demonstrate he is likely to prevail at a hearing on the merits to entitle him to receive past
medical expenses. He introduced medical bills from multiple providers, but only one
medical note. This scant medical evidence failed to show the nature of the medical
treatment Mr. Holmes received or whether the bills established charges for reasonable
and necessary medical treatment related to Mr. Holmes' right-hand injury.

                              Temporary Disability Benefits

       To establish entitlement to temporary disability benefits, Mr. Holmes must show
(1) he became disabled from working due to a compensable injury; (2) a causal
connection exists between the injury and the inability to work; and (3) he became
disabled for a specific duration .. Jones v. Crencor, 2015 TN Wrk. Comp. App. Bd.
LEXIS 48, at *7 (Dec. 11, 2015).

        In the present case, Mr. Holmes provided one discharge note from Methodist
University Hospital and some medical bills. He did not present records to relate the bills
to treatment for the work injury or to prove the time he was unable to work because of his


                                             3
injury. Therefore, the Court finds Mr. Holmes did not present sufficient evidence at this
time to demonstrate his entitlement to temporary disability benefits.

                              Uninsured Employers Fund

       Under Tennessee Code Annotated section 50-6-802(e)(1), the Bureau has
discretion to pay limited temporary disability and medical benefits to "any employee who
suffered an injury arising primarily within the course and scope of the employee's
employment with an employer who failed to secure the payment of compensation at the
time the eligible employee suffered the injury." Tenn. Code Ann. § 50-6-801(d).

       Mr. Holmes proved eligibility for payments from the Bureau by establishing the
following criteria: Watkins failed to carry workers' compensation insurance; Mr. Holmes
suffered an injury on March 17, 2017, within the course and scope of employment, at a
time when Watkins failed to secure the payment of compensation; Mr. Holmes was a
Tennessee resident on the date of the injury; and Mr. Holmes provided notice to the
Bureau of the injury within sixty days and of Watkins' failure to secure the payment of
compensation by filing a Petition for Benefit Determination on May 4. Based upon the
parties' testimony and the record before the Court at this time, the Court holds that Mr.
Holmes meets all the criteria to qualify as an eligible employee under Tennessee Code
Annotated section 50-6-801, et seq.

IT IS, THEREFORE, ORDERED as follows:

       1. Ellis Watkins d/b/a Watkins Lawn Care shall provide Mr. Holmes with a panel
          of physicians pursuant to Tennessee Code Annotated section 50-6-204.

      2. Mr. Holmes is not entitled to past medical expenses or temporary disability
         benefits at this time.

      3. Mr. Holmes meets all the criteria of the Uninsured Employers Fund to
         qualify as an eligible employee.

      4. This matter is set for a Scheduling Hearing on February 5, 2018, at 9:00 a.m.
         Central Time. The parties must call (615)532-9550 or toll free (866)943-0014
         to participate in the Scheduling Hearing. Failure to appear by telephone may
         result in a determination of issues without your participation.

      5. Unless interlocutory appeal of the Expedited Hearing Order is filed,
         compliance with this Order must occur no later than seven business days from
         the date of entry of 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 Bureau by email to

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                                      APPENDIX

Exhibits:
       1)   Expedited Request for Investigation Report
       2)   Affidavit of Daryl Holmes
       3)   Affidavit of Ellis Watkins
      4)    Medical bills (Collective)
       5)   Photographs of Mr. Holmes' injury (Collective)
       6)   Medical records from Methodist Central Hospital


Technical Record:
       1) Petition for Benefit Determination
       2) Dispute Certification Notice
       3) Request for Expedited Hearing with attached Affidavit of Daryl Holmes
       4) Order Denying Mr. Holmes' Request for a Decision on the Record




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  WCCompliance.Program@tn. gov no later than the seventh 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.

6. For questions regarding compliance, please contact the Workers'
   Compensation Penalty Unit by email at WCCompliance.Program@tn.gov.


ENTERED this the~ day of December, 2017.




                     ~~---
                      BC§N:DEANA     C. SEYMOUR
                         Workers' Compensation Judge




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                           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 _1st
                                                                                   _ day
ofDecember, 2017.

Name                       Certified Via       Via     Service sent to:
                           Mail      Fax       Email
James Blount, IV,                                X      jimmy@blountfirm .com
Employee's Counsel
Ellis Watkins,                 X                       617 N. Merton Street
Employer                                               Memphis, TN 3 8112




                                        Pe ny Shli , Clerk of Court
                                        Court of orkers' Compensation Claims
                                        WC.CourtCierk@tn.gov




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