1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT GRAY

JOSE MENDEZ , ) Docket N o. : 2018

- 02

- 0214

Employee, )

v. ) ESKOLA ROOFING ,

Employer, ) State File N o. : 24741

- 2018

A nd ) AMERICAN CASUALTY COMPANY , ) ) Judge Brian K. Addington

Carrier. )

EXPEDITED HEARING ORDER

Mr. Mendez request ed an expedited hearing seeking additional medical and temporary disability benefits for his physical and mental injuries. Eskola Roofing asserted that it met its obligation in providing medical benefits

, and that Mr. Mendez was not entitled to additional tempo rary benefits because of the presumption of maximum medical improvement under T ennessee Code Annotated Section 50

- 6

- 207(1)( E )

. The C ourt held an expedited hearing on February 4, 2022, and for the reasons below, denies Mr. Mendez’s request s but allows him to return to the authorized treating physician

. History of Claim

Mr. Mendez fell from a roof at work and struck his head on April 2, 2018. His primary injury was a cut on the head. He received authorized treatment at the emergency room and , in the order listed, with Drs. Marilyn Bishop, occupational medicine provider ; Timothy Zajonc

, ears, nose and throat specialist ; and Kenneth Smith, neurosurgeon. Each physician referred Mr. Mendez to the next specialty.

Dr. Smith eventually referred Mr. Mendez for neuropsychological testing. Instead, Eskola provided an employer’s examination with psychiatrist Dr. J. Sidney Alexander on July 24, 2020

. He reviewed Mr. Mendez’s prior records, interviewed Mr. Mendez and his wife, and performed a physical examinati on and testing. He concluded that Mr. Mendez 

### FILED Feb 09, 2022 07:23 AM(CT)
TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS2

had not experienced a psychiatric injury from the April 2, 2018 incident and should return to work.

After the visit with Dr. Alexander, Mr. Mendez and his wife returned to Dr. Smith on November 2. He reviewed Dr. Alexander’s report and repeated his referral for neuropsychological evaluation and treatment. Dr. Smith stated th at Mr. Mendez did not need surgery or medications but had not attained maximum medical improvement.

The parties agreed that Mr. Mendez would see neuropsychologist Dr. Rachel Lacy. However, due to the language barrier

, Dr . Lacy wrote that she was unable to draw “any solid conclusions of the claimant’s ability to work o r what therapies he may need since the dat a is not based on a full Spanish

— written battery tests.” S he determined that Mr. Mendez was depressed and needed a psychiatrist or psychologist to treat it

. She also determined Mr. Mendez needed to be seen by a Sp anish proficient neuropsychologist, Dr. John Sass.

The parties then arranged for Mr. Mendez to see D r. Sass. The day before the appointment, Mr. Mendez’s wife drove him to Georgia for it

. However

, during the drive, h e exited the vehicle at a stoplight and spent the night wandering the streets. His wife found him the next morning and took him to the appointment, but he did not complete the examination

, so D r. Sass was unable to write a report

. Mr. Mendez explained that travel, being confined in small places, anxiety over the testing , and his physical injuries accounted for his actions the night before and his inability to continue the test

.

Mr. Mendez and his wife testified that he need s additional medical benefits ̶ specifically, another neuropsychological examination , and a return to Dr. Smith for his physical injuries

. They testified that his head and neck continue to hurt, and that Dr. Smith could not determine his work status or treatment plan until he under goes the neuropsychological testing. Further, they stated he is depressed

, anxious

, and angry

.

Eskola asserted that Mr. Mendez did not have a reasonable explanation to stop the testing

, for which they had all been waiting. Further, it argued he is presumed to be at maximum medica l improvement because no current treatment is available for his physical injuries

. Findings of Fact and Conclusions of Law

At an expedited hearing, Mr. Mendez must present sufficient evidence to show that he is likely to prevail at a hearing on the merits

. See Tenn. Code Ann. § 50

- 6

- 239(d)(1) (202 1 ); McCord v. Advantage Human Resourcing , 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015).

Here, Mr. Mendez asserted that he is entitled to additional physical and psychological treatment. He contended that his head and neck continue to hurt. Although3

the Court acknowledges his physical complaints, Dr. Smith , the authorized treating physician, has n ot ordered additional treatment or medications. In fact, he stated they were not needed when he last saw Mr. Mendez.

Concerning the neuro psychological treatment, Eskola attempted to provide neuropsychological examination s by Dr . Lacy and Dr. Sass. Dr

. L acy ’s examination, in her own opinion, was inadequate ; s o, the Court gives it no weight. Mr. Mendez terminated Mr. Sass’s examination before its conclusion.

However, the issue before the Court is not whether Mr. Mendez was justified in terminating th e neuropsychological examination, but what, if any, further examination or treatment Dr. Smith believes he needs in view of what happened. Since valid neuropsychological testing has not been completed and reviewed by Dr. Smith

, the Court will not order an y specific medical benefits at this time , other than Mr. Mendez remains entitled to any reasonable and necessary treatment Dr. Smith deems appropriate

. As for Mr. Mendez’s request for temporary total disability benefits, an injured employee is conclusively presumed to be at maximum medical improvement when the treating physician ends all active medical treatment, and the only care is for pain or a mental injury that arose from the physical injury. See Tenn. Code Ann. § 50

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- 207(1)(E). Mr. Mendez is not receiving any active treatment from Dr. Smith for his physical injury; therefore, he is conclusively presumed to be at maximum medical improvement and not entitled to additional temporary total disabili ty benefits.

In sum , Mr. Mendez has not provided sufficient evidence to show that he is likely to prevail at a hearing on the merits for the requested medical and temporary total disability benefits.

IT IS, THEREFORE, ORDERED

, as follows:

1. Mr. Mendez’s request for temporary total disability benefits is denied at this time

.

2. The Court denies Mr. Mendez’s request for further neuropsychological testing at this time . However, Mr. Mendez may return to the authorized treating physician, Dr. Smith, for treatment and recommendations under Tennessee Code Annotated Section 50

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- 204.

3. This case is set for a status conference on April 6, 2022, at 10:00 a . m . Eastern time . The parties shall call 855

- 543

- 5044 to participate.4

ENTERED FEBRUARY 9 , 202 2

.

________________________________ ______ BRIAN K. ADDINGTON , JUDGE Court of Workers’ Compensation Claims

APPENDIX

Exhibits: 1. Mr. Mendez ’s Affidavit 2. Personnel File 3. Controlled Substance Test 4. Medical Records of Dr. Marilyn Bishop 5. Medical Records of Dr. Sydney Alexander 6. Medical Records of Dr. Ken Smith 7. Medical Records of Dr. Rachel Lacy, Psy.D. 8. Medical Records of Dr. Timothy Zajonc 9. Agreed Expedited Hearing Order 10. Emergency Medi cal Services record

Technical Record: 1. P etition for B enefit D etermination 2. D ispute C ertification N otice 3. Hearing Request 4. Employee’s Motion to Compel Discovery 5. Discovery Order 6. Pre

- Expedited Hearing Memorandum 7. Employer’s Witness and Exhibit List 8. Employer’s Pre

- Hearing Statement 9. Employee’s Witness and Exhibit List5 CERTIFICATE OF SERVICE

I certify that a copy of this order was sent on February 9 , 2022

.

Name Certified

Mail Fax Email Service sent to:

Samuel Hall

, Employee ’s Attorney X sam.hall.tn.law@gmail.com

Richard Clark

, Employer’s Attorney X rclark@eraclides.com jenniferdavis@eraclides.com

______________________________________ PENNY SHRUM, COURT CLERK wc.courtclerk@tn.govFor self

- represented litigants: Help from an Ombudsman is available at 800

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- 2667. Expedited Hearing Order Right to Appeal :

If you disagree with this Expedited Hearing Order, you may appeal to the Workers’ Compensation Appeals Board. To appeal an expedited hearing order , you must:

1. Complete the enclosed form entitled: “ Notice of Appeal,” and f ile the form with the Clerk of the Court of Workers’ Compensation Claims within seven business days of the date the expedited hearing order was filed . When filing the Notice of Appeal, you must
serve a copy upon all parties

.

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 B ureau 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 of the fee. You must file the fully

complete d 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 Indigency will result in dismissal of the 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. If a transcript of the proceedings is to be filed, a licensed court reporter must prepare the transcript and file it with the court clerk within ten busine ss days of the filing the Notice of Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both parties within ten business 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 before the record is submitted to the Appeals Board. If the Appe als 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. If you wish to file a position statement, you mu st file it with the court clerk within ten business days after the deadline to file a transcript or statement of the evidence. The party opposing the appeal may file a response with the court clerk within ten business days after you file your position sta tement. All position statements 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.LB -1099 rev. 01/20 Page 1 of 2 RDA 11082 NOTICE OF APPEAL Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries- at -work/ wc.courtclerk@tn.gov | 1- 800

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Docket No. :

________________________ State File No.:

______________________ Date of Injury: _____________________

___________________________________________________________________________ Employee

v.

___________________________________________________________________________ Employer

Notice is given that ____________________________________________________________________

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Co mpensation Appeals Board (check one or more applicable boxes and include the date filestamped on the first page of the order(s) being appealed):



### □ Expedited Hearing Order fil ed on

_______________ 

### □ Motion Order filed on ___________________



### □ Compensation Order filed on

__________________ 

### □ Other Order filed on

_____________________ issued by Judge _____________________________________________________________________

____ .

Statement of the Issues on Appeal Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

______________________________________________________________________________________ __

______________________________________________________________________________________ __

______________________________________________________________________________________ __

______________________________________________________________________________________ __
Parties Appellant(s) (Requesting Party): _________________________________________ ☐ Employer ☐ Employee Address: _______________________________________________________

_ Ph one: ___________________ Email: __________________________________________________________ Attorney’s Na me:

_____________________________________________ _ BPR#: _______________________ Attorney’s E mail: _____________________________________________

_ Phone: _______________________ Attorney’s Ad dress:

_________________________________________________________________________ * Attach an additional sheet for each additional Appellant *LB -1099 rev. 01/20 Page 2 of 2 RDA 11082

Employee Name: _______________________________________ Docket No.: __________________

__ _ Date of Inj.:

____

___________

Appellee(s) (Opposing Party): ___________________________________________ ☐ Employer ☐ Employee App ellee’s Address:

_____________________________________________ _ Phone:

_ ___________________ Email: _________________________________________________________ Attorney’s Na me:

_____________________________________________ B PR#: ________________________ Attorney’s E mail: _____________________________________________ Phone:

_______________________ Attorney’s Ad dress:

_________________________________________________________________________ * Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described in Tennessee Compilation Rules & Regulations, Chapter 0800- 02

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, to all parties and/or their attorneys in this case on this the __________ day of ___________________________________, 20 ____.

__ ____________________________________________ [Signature of appellant or attorney for appellant]