FILED

Mar 06, 2019

09:25 AM(ET)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
between Mr. Blevins and Mr. Morrow, Mr. Blevins asked Mr. Morrow if he had taken 

money out of his check. Mr. Morrow responded, "No. This is a filler job and pays $2 

less per hr ... It's just to keep you guys busy between big jobs." 

Mr. Morrow stated he had no recollection and kept no records concerning the 

hourly pay rate per week but recorded the hours worked per day in a calendar. Mr. 

Morrow's calendar contained Mr. Blevins' name and the hours he worked on ten of the 

thirteen weeks before his injury. Mr. Blevins' "recorded" hours in those ten weeks 

totaled 192. 

The parties additionally disputed whether Mr. Blevins' injuries were due to 

intoxication or drug use. Before the injury, Mr. Blevins suffered from chronic back pain. 

He was under the care of Dr. David Coffey, who prescribed 7.5 milligrams of 

hydrocodone four times per day. Mr. Blevins testified that some days his pain was worse 

than others but he always had pain. On the worst days, he might take more than four 

doses, so his pill counts were short at his next office visit. Dr. Coffey's records indicated 

multiple occasions of abnormal pill counts and abnormal urine drug screens. 

Mr. Blevins indicated the pain medication had no effect on his ability to walk, 

balance, or pick things up. He stated that he took the medication daily and was told by 

Dr. Coffey he could work while taking hydrocodone. He also stated that Mr. Morrow 

knew about his chronic pain and use of pain medication. 

Mr. Morrow denied that he knew Mr. Blevins was taking pain medication. He 

stated that he knew Mr. Blevins was on "drugs" before, and when he hired him, he asked 

Mr. Blevins whether he was on drugs or clean. He testified that Mr. Blevins told him he 

was clean. He indicated that, had he known Mr. Blevins was using pain medication, he 

would not have allowed Mr. Blevins on the jobsite. Mr. Morrow testified that he has 

thrown employees off the job site in the past for intoxication or drug use. He admitted 

that he did not observe Mr. Blevins working intoxicated or under the influence of drugs. 

On the injury date, Mr. Blevins took his first dose of hydrocodone as usual and left 

for a roofing job. While working on the roof, Mr. Blevins grabbed two heavy bundles of 

shingles and turned to go up a steep roof when he felt pain in his left ankle. Afterward, 

Mr. Morrow drove Mr. Blevins to Big South Fork Medical Center (BSFMC), where xrays showed a left-ankle fracture. Due to BSFMC's limited services, Mr. Blevins was 

sent to Methodist Medical Center (MMC) for an orthopedic consultation. At MMC, the 

attending physician diagnosed not one, but two, fractures in his left ankle and lower leg 

and referred him to an orthopedic surgeon. 

A few days later, Mr. Blevins saw Dr. Jean Francois Reat, who performed surgery. 

Following surgery, Dr. Reat continued to treat Mr. Blevins' ankle and kept him off work 

until February 19, 2018, a period of nine weeks and four days. 

2 
After Mr. Blevins returned to work, he developed pain, stiffness, and swelling in 

his left ankle. He returned to Dr. Reat, who referred him to Dr. Tracy Pesut. Dr. Pesut 

took him off work on April 5 and recommended another surgery. After the second 

surgery, Dr. Pesut kept him off work until August 9, an additional eighteen weeks. 

Over the course of his treatment, Mr. Blevins incurred expenses at Tennessee 

Orthopedic Clinic of $17,593.00; at Methodist Medical Center of $15,009.10; and at 

Parkwest Medical Center of $13,650.92. 1 His medical charges totaled $46,253 .02. 

At the Expedited Hearing, Mr. Blevins asked the Court to order payment of his 

medical expenses and to order Mr. Morrow to provide ongoing medical treatment with 

Dr. Pesut as the authorized treating physician. He further asked the Court to award 

temporary total disability benefits for twenty-seven weeks and four days. He argued, 

based on thirty hours per week, his average weekly wage was $286.15 and his 

compensation rate was $190.80. 

Mr. Blevins also argued that Mr. Morrow failed to meet its burden of showing that 

his injury was proximately caused by intoxication or drug use. None of the medical 

records demonstrated he was intoxicated or under the influence of drugs at the time of the 

injury. He contended that no evidence suggests the hydrocodone had any effect on his 

injury. Additionally, he argued Mr. Morrow admitted that he did not observe Mr. Blevins 

intoxicated or under the influence of drugs and testified that he would not have allowed 

him to remain on the job ifhe had. 

Mr. Morrow argued that the medical records demonstrated a history of abnormal 

urine drug screens and abnormal pill counts. On the date of injury, Mr. Blevins admitted 

that he took hydrocodone before work, and the injury happened shortly after he started 

working on the job site. Mr. Morrow asked the Court to deny Mr. Blevins' request for 

benefits because his injury was proximately caused by his intoxication or drug use. In the 

event the Court awards benefits to Mr. Blevins, Mr. Morrow argued that Mr. Blevins 

would be entitled to the minimum weekly compensation rate of $135.20. 

Findings of Fact and Conclusions of Law 

To prove a compensable injury, Mr. Blevins must show his left ankle injury arose 

primarily out of and in the course and scope of his employment. However, he need not 

prove every element of his defense by a preponderance of the evidence to succeed at an 

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 present sufficient 

1 Mr. Blevins did not submit bills regarding his treatment at BSFMC or include the amount charged by 

BSFMC in his medical bill summary. 

3 
evidence from which this Court might determine he is likely to prevail at a hearing on the 

merits. Id. 

Mr. Morrow contended that Tennessee Code Annotated section 50-6-110(a)(3) 

bars Mr. Blevins' claim because he was intoxicated or under the influence of drugs at the 

time of the injury. This section precludes compensation in circumstances where the 

injury was "due to" the employee's intoxication or illegal drug usage. "Due to" means 

the proximate cause of the injury and not merely a remote or contributing cause. See 

Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 449 (Tenn. 2012).2 Under section 

50-6-11 O(b ), the burden of proof shifts to Mr. Morrow to establish this defense. Bowlin 

v. Serva!!, LLC, 2018 TN Wrk. Comp. App. Bd. LEXIS 6, at* 12 (Feb. 8, 2018). 

Here, Mr. Blevins acknowledged that he suffered from chronic pain and took 

hydrocodone during the period before the injury. He further acknowledged, and the 

medical records showed, that he had abnormal pill counts and urine drug screens during 

the same period. However, there is no medical evidence that Mr. Blevins was intoxicated 

at the time of the injury or that one dose of hydrocodone on the morning of the injury 

proximately caused his left ankle injury. A history of abnormal drug screens alone does 

not satisfy Mr. Morrow's burden of proving that Mr. Blevins' drug use proximately 

caused the injury. 

Additionally, while Mr. Morrow denied knowledge of Mr. Blevins' use of 

hydrocodone while working, he admitted he did not observe Mr. Blevins working under 

the influence of drugs and, if observed, he stated that he would not have allowed Mr. 

Blevins to continue working. Further, Mr. Blevins' unrebutted testimony provided that 

the hydrocodone had no effect on his ability to walk, balance, or pick up items. 

Just as the Workers' Compensation Appeals Board concluded in Bowlin, the Court 

similarly finds that Mr. Morrow presented no evidence that Mr. Blevins was intoxicated 

at the time of his injury or that his drug use was the proximate cause of the accident. 

Therefore, the Court holds Mr. Morrow failed to demonstrate that Mr. Blevins' 

intoxication or drug use proximately caused his injury. As a result, and in light of the 

parties' stipulation, the Court concludes that Mr. Blevins is likely to prevail at a hearing 

on the merits that his injury arose primarily out of and in the course and scope of his 

employment. 

The Court must next determine whether Mr. Blevins is entitled to medical and 

2 At the time the Tennessee Supreme Court decided Mitchell, Tennessee Code Annotated section 50-6-

116 (2012) declared the Workers' Compensation Act to be "a remedial statute, which shall be given an 

equitable construction by the courts[.]" However, the Appeals Board later explained, "This previous 

statutory preference for an equitable construction and a remedial application played no role in the 

outcome of Mitchell; accordingly, we are bound by its principles." Scarbrough v. Right Way Recycling, 

LLC, 2015 TN Wrk. Comp. App. Bd. LEXIS 9, at *13 (Apr. 20, 2015). 

4 
temporary disability benefits. 

Regarding past medical expenses, the evidence demonstrated Mr. Blevins 

fractured two bones in his ankle, underwent two surgeries, and incurred medical expenses 

totaling $46,253.02. In his Revised Notice of Filing Medical Records, Mr. Blevins gave 

notice that "counsel for both parties have conferred in this matter and agreed to stipulate 

to the admissibility of all the attached and above-referenced records." The filing 

contained both Mr. Blevins' medical records as well as itemized billing records prepared 

by his treating physicians. Based on the parties' stipulations to the admissibility of the 

records, the Court concludes Mr. Blevins sufficiently demonstrated that he is likely to 

prevail at a hearing on the merits that he is entitled to past medical expenses. See Miller 

v. Logan's Roadhouse, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 59, at *13 (Nov. 15, 

2018) (When an employer denies a claim, it does so at the risk that it may be required to 

pay for medical care with the physician of the employee's choosing). 

Concerning ongoing medical treatment, the Workers' Compensation Law provides 

that an employer shall provide an injured employee with reasonable and necessary 

medical treatment causally related to the work injury. See Tenn. Code Ann. § 50-6-204. 

Accordingly, the Court holds that Mr. Morrow shall provide Mr. Blevins with reasonable 

and necessary medical treatment related to his work injury and Dr. Pesut shall be the 

authorized treatment physician. See Young v. Young Elec. Co., 2016 TN Wrk. Comp. 

App. Bd. LEXIS 24, at *18 (May 25, 2016). 

Finally, as to temporary disability benefits, the Workers' Compensation Law 

provides that an employer shall pay temporary total disability benefits to an injured 

employee when the employee proves: (1) he became disabled from working due to a 

compensable injury; (2) a causal connection exists between the injury and his inability to 

work; and (3) he established the duration of his disability. Jones v. Crencor Leasing and 

Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). 

Here, the Court concluded that Mr. Blevins is likely to prove that his injury arose 

primarily out of and in the course and scope of his employment. Through his testimony, 

he established that he missed twenty-seven weeks and four days of work following the 

surgeries to repair his ankle. Accordingly, the Court holds that Mr. Blevins presented 

sufficient evidence demonstrating he is likely to prevail at a hearing on the merits that he 

is entitled to temporary total disability (TTD) benefits. 

To determine the amount owed, the Court must determine Mr. Blevins' average 

weekly wage. Mr. Blevins testified that, before the injury, he earned $10 per hour, 

occasionally earned $8 per hour in filler jobs, and worked an average of thirty hours per 

week. Mr. Morrow testified he paid Mr. Blevins $8 per hour, occasionally $10 per hour, 

and noted in his calendar that Mr. Blevins worked 192 hours during ten of the thirteen 

weeks between his hire date and injury. Neither Mr. Blevins nor Mr. Morrow knew or 

5 
recorded the hourly rate paid to Mr. Blevins on any given day or week. However, the 

Court finds the text message exchange supports Mr. Blevins' testimony that he generally 

earned $10 unless he worked a filler job at the lower rate. 

With regard to the number of weeks that Mr. Blevins earned $10 versus $8, Mr. 

Blevins estimated that he worked three weeks of filler jobs at $8 per hour and the 

remaining ten weeks at $10 per hour. However, Mr. Morrow testified that Mr. Blevins 

worked ninety percent of the time at $8 per hour. Additionally, Mr. Morrow's calendar 

noted that Mr. Blevins only worked in ten of the thirteen weeks between his hire date and 

injury date. Due to poor record-keeping by both parties, and weighing the competing 

testimony and the hours noted in Mr. Morrow's calendar, the Court finds Mr. Blevins 

worked 192 hours over ten of the thirteen weeks between his hire date and his injury. 

The Court further finds that Mr. Blevins earned $10 per hour for seven weeks and $8 per 

hour for three weeks. 

The Court's calculations are as follows: 192 hours divided by ten weeks equates to 

an average of 19 .2 hours per week. 19 .2 Hours multiplied by seven weeks at $10 per 

hour equals $1,344. 19.2 Hours multiplied by three weeks at $8 per hour equals $460.80. 

Adding these together, the Court finds Mr. Blevins earned $1,804.80 over ten weeks, 

which equates to an average weekly wage of $180.48. Because two-thirds of his average 

weekly wage would fall below the minimum weekly compensation rate, the Court holds 

that the evidence demonstrated that Mr. Blevins is entitled to the minimum weekly rate of 

$135.20. Accordingly, the Court orders Mr. Morrow to pay Mr. Blevins twenty-seven 

weeks and four days ofTTD benefits at $135.20 per week for a total of $3,727.64. 

IT IS, THEREFORE, ORDERED as follows: 

1. Mr. Morrow shall pay Mr. Blevins' past medical expenses totaling $46,253.02 and 

shall provide ongoing medical treatment for his work injuries with Dr. Pesut as the 

authorized treating physician. 

2. Mr. Morrow shall pay Mr. Blevins temporary total disability benefits for twentyseven weeks and four days at the minimum weekly workers' compensation rate of 

$135.20 for a total of $3,727.64. 

3. This matter is set for a Status Conference on July 11, 2019, at 10:00 a.m. Eastern 

Time. The parties must call 865-594-0091 or 855-543-5041 toll-free to participate 

in the Scheduling Hearing. Failure to appear by telephone may result in a 

determination of the issues without the party's participation. 

4. 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). 

6 
The Insurer or Self-Insured Employer must submit confirmation of compliance 

with this Order to the Bureau by email to 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. 

5. For questions regarding compliance, please contact the Workers' Compensation 

Compliance Unit by email at WCCompliance.Program@tn.gov. 

ENTERED March 6, 2019. 

Court of Workers' Compensation Claims 

APPENDIX 

Technical Record: 

1. Petition for Benefit Determination 

2. Dispute Certification Notice 

3. Motions - Blevins' Motion to Compel Discovery 

4. Court Order - Agreed Order for Extension of Time to Respond to Discovery 

5. Court Order - Show Cause Order 

6. Docketing Notice - Show Cause Hearing 

7. Court Order - Amended Show Cause Order 

8. Request for Expedited Hearing 

9. Docketing Notice - Expedited Hearing 

10. Court Order - Order Following Show Cause Hearing 

11. Affidavit - Keith Blevins 

12. Court Order - Agreed Order for Continuance of Expedited Hearing 

13. Docketing Notice - Expedited Hearing 

14. Employee Notice of Filing - Medical Records 

15. Employer Notice of Filing - Medical Records 

16. Employee Notice of Filing - Medical Records 

As announced at the hearing, the Court did not consider, and did not include, 

attachments to these pleadings unless admitted into evidence during the Expedited 

Hearing and listed below. 

7 
Exhibits: 

1. Keith Blevins' Affidavit 

2. Expedited Request for Investigation Report 

3. Employer's Medical Records of: 

• Coffey Family Medical Clinic 

• Big South Fork Medical Center 

4. Employee's Medical Records & Expenses of Tennessee Orthopedic Clinic 

5. Employee's Medical Records & Expenses of Methodist Medical Center 

6. Employee's Medical Records & Expenses of Big South Fork Medical Center 

7. Employee's Medical Records & Expenses of Parkwest Medical Center 

8. Photographs 

9. Employee Medical Bill Summary 

10. Hourly logs 

11. Text Messages 

CERTIFICATE OF SERVICE 

I 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 March 6, 2019. 

Name Certified 

Mail 

Chris W. Beavers, 

Employee's Attorney 

Michael T. Grubbs, 

Employer's Attorney 

Fax Email Service sent to: 

x chrisbeavers@banksandjones.com 

x mcraig-grubbs@fksclaw.com 

UM, Court Clerk 

WC.CourtClerk@tn.gov 

8