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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT GRAY

JOSE MENDEZ, ) Docket No.: 2018-02-0214

Employee, )

v. )

ESKOLA ROOFING,

 Employer, )

State File No.: 24741-2018 

And )

AMERICAN CASUALTY 

COMPANY,

)

)

Judge Brian K. Addington

Carrier. )

EXPEDITED HEARING ORDER

Mr. Mendez requested 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 temporary benefits because of the presumption of maximum medical 

improvement under Tennessee Code Annotated Section 50-6-207(1)(E). The Court held 

an expedited hearing on February 4, 2022, and for the reasons below, denies Mr. Mendez’s 

requests 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 examination and testing. He concluded that Mr. Mendez 

FILED

Feb 09, 2022

07:23 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
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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 that 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 or what therapies he may need since the 

data is not based on a full Spanish—written battery tests.” She 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 Spanish proficient neuropsychologist, Dr. John Sass. 

The parties then arranged for Mr. Mendez to see Dr. Sass. The day before the 

appointment, Mr. Mendez’s wife drove him to Georgia for it. However, during the drive, 

he 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 Dr. 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 needs 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 undergoes 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 medical 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) 

(2021); 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. Although 
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the Court acknowledges his physical complaints, Dr. Smith, the authorized treating 

physician, has not ordered additional treatment or medications. In fact, he stated they were 

not needed when he last saw Mr. Mendez. 

Concerning the neuropsychological treatment, Eskola attempted to provide 

neuropsychological examinations by Dr. Lacy and Dr. Sass. Dr. Lacy’s examination, in 

her own opinion, was inadequate; so, 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 the 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 any 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. § 50-6-207(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 disability 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 50-6-204. 

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.
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ENTERED FEBRUARY 9, 2022.

______________________________________

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 Medical Services record

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

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 List
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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.gov
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

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 file 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 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 of the fee. You must file the fullycompleted 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 business 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 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. If you wish to file a position statement, you must 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 statement. 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 | 1-800-332-2667 

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’ Compensation 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 filed 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: ________________________________________________________ Phone: ___________________ 

Email: __________________________________________________________ 

Attorney’s Name: ______________________________________________ BPR#: _______________________ 

Attorney’s Email: ______________________________________________ Phone: _______________________ 

Attorney’s Address: _________________________________________________________________________ 

* 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 

Appellee’s Address: ______________________________________________ Phone: ____________________ 

Email: _________________________________________________________ 

Attorney’s Name: _____________________________________________ BPR#: ________________________ 

Attorney’s Email: _____________________________________________ Phone: _______________________ 

Attorney’s Address: _________________________________________________________________________ 

* 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 0800-02-21, to all parties and/or their attorneys in this 

case on this the __________ day of ___________________________________, 20 ____. 

 ______________________________________________ 

[Signature of appellant or attorney for appellant]