### FILED Mar 06, 2019 09:25 AM(ET) TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMSbetween Mr. Blevins and Mr. Morrow, Mr. Blevins asked Mr. Morrow ifhe had taken money out ofhis check. Mr. Morrow responded, "No. This is a fillerjob and pays $2 less perhr

...It'sjustto keep you guys busy betweenbigjobs." 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 ofthe 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. Beforethe injury, Mr. Blevins suffered from chronic backpain. He was under the care of Dr. David Coffey, who prescribed 7.5 milligrams of hydrocodone four times per day. Mr. Blevins testifiedthat some days his painwas 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'srecords indicated multiple occasions ofabnormalpill 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 abouthis chronicpain anduse ofpain 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 thejobsite. Mr. Morrow testified that he has thrown employees offthejob site in the past for intoxication or drug use. He admitted thathe did not observe Mr. Blevins working intoxicated orunderthe influence ofdrugs. Onthe injury date, Mr. Blevinstookhis first dose ofhydrocodone as usual and left for aroofingjob. While working on the roof, Mr. Blevins grabbed two heavy bundles of shingles and turned to go up a steep roofwhen 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 andreferredhimto an orthopedic surgeon. A few days later, Mr. Blevins sawDr. JeanFrancois Reat, whoperformed surgery. Following surgery, Dr. Reat continued to treat Mr. Blevins' ankle and kept him offwork until February 19, 2018, aperiod ofnine weeks and four days. 2After 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. Pesutkept him offworkuntil August 9, an additional eighteenweeks. 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 ParkwestMedical 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 ofhis 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 compensationrate was $190.80. Mr. Blevins also arguedthatMr. Morrow failed to meet its burden ofshowing that his injury was proximately caused by intoxication or drug use. None ofthe medical records demonstrated he was intoxicated orunderthe influence ofdrugs atthetime ofthe injury. He contended that no evidence suggests the hydrocodone had any effect on his injury. Additionally, he arguedMr. Morrow admittedthathe did not observeMr. Blevins intoxicated or under the influence ofdrugs and testified that he would not have allowed himto remain on thejobifhehad. Mr. Morrow argued that the medical records demonstrated a history ofabnormal urine drug screens and abnormal pill counts. On the date ofinjury, Mr. Blevins admitted that he took hydrocodone before work, and the injury happened shortly after he started working on thejob site. Mr. Morrow asked the Court to deny Mr. Blevins' request for benefits becausehis injury was proximatelycausedby his intoxication or drug use. In the event the Court awards benefits to Mr. Blevins, Mr. Morrow argued that Mr. Blevins wouldbe entitledto the minimum weekly compensationrate of$135.20. Findings ofFact and Conclusions ofLaw To prove a compensable injury, Mr. Blevins must show his left ankle injury arose primarily out ofand in the course and scope ofhis employment. However, he need not prove every element ofhis defense by a preponderance ofthe 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. 3evidence from whichthis Court might determine he is likely to prevail at ahearing onthe 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 ofdrugs 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 ofthe 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 50-6-11O(b), the burden ofproofshifts to Mr. Morrow to establish this defense. Bowlin v. Serva!!, LLC, 2018 TNWrk. 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 sameperiod. However, there is no medical evidence thatMr. Blevins was intoxicated at the time ofthe injury or that one dose ofhydrocodone on the morning ofthe injury proximately caused his left ankle injury. A history ofabnormal drug screens alone does not satisfy Mr. Morrow's burden of proving that Mr. Blevins' drug use proximately causedthe 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 ofdrugs and, ifobserved, he stated that he would not have allowed Mr. Blevins to continue working. Further, Mr. Blevins' unrebutted testimony provided that the hydrocodone hadno effect on his ability to walk, balance, orpickup items. Just as the Workers' CompensationAppeals Board concluded inBowlin, the Court similarly finds that Mr. Morrow presented no evidence that Mr. Blevins was intoxicated at the time ofhis injury or that his drug use was the proximate cause ofthe 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 ofthe parties' stipulation, the Court concludes that Mr. Blevins is likely to prevail at a hearing on the merits that his injury arose primarily out ofand in the course and scope ofhis 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 ofMitchell; 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). 4temporary disability benefits. Regarding past medical expenses, the evidence demonstrated Mr. Blevins fractured two bones in his ankle, underwenttwo surgeries, and incurred medical expenses totaling $46,253.02. In his Revised Notice ofFiling 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 ofthe 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'sRoadhouse, 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 carewiththephysician ofthe employee's choosing). Concerning ongoing medical treatment, the Workers' CompensationLawprovides 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 establishedthe duration ofhis disability. Jones v. CrencorLeasingand Sales, 2015 TNWrk. 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 ofand in the course and scope ofhis employment. Through his testimony, he established that he missed twenty-seven weeks and four days ofwork 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 thathe is entitledto 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 fillerjobs, and worked an average ofthirty hours per week. Mr. Morrow testified he paid Mr. Blevins $8 perhour, occasionally $10 per hour, and noted in his calendar that Mr. Blevins worked 192 hours during ten ofthe thirteen weeks between his hire date and injury. Neither Mr. Blevins nor Mr. Morrow knew or 5recorded 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 heworked a fillerjob at the lowerrate. With regard to the number ofweeks 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 ofthe time at $8 per hour. Additionally, Mr. Morrow's calendar noted thatMr. Blevins only worked in ten ofthethirteenweeks betweenhis 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 ofthe thirteen weeks between his hire date and his injury. The Court further finds thatMr. Blevins earned $10 perhour for seven weeks and $8 per hourfor three weeks. The Court's calculations are as follows: 192 hours divided bytenweeks 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 multipliedby threeweeks at $8 perhour 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. Becausetwo-thirds ofhis average weekly wage would fall below the minimum weekly compensation rate, the Court holds thatthe evidence demonstratedthatMr. Blevins is entitledto the minimumweeklyrate of $135.20. Accordingly, the Court orders Mr. Morrow to pay Mr. Blevins twenty-seven weeks and four days ofTTDbenefits at $135.20perweek for atotal 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 shallprovide ongoing medicaltreatmentfor his workinjuries withDr. Pesut as the authorizedtreatingphysician. 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 atotal of$3,727.64. 3. This matter is setfor a Status Conference onJuly 11, 2019, at 10:00 a.m. Eastern Time. Theparties must call 865-594-0091 or 855-543-5041 toll-freeto participate in the Scheduling Hearing. Failure to appear by telephone may result in a determination ofthe issues withoutthe party'sparticipation. 4. Unless interlocutory appeal ofthe Expedited Hearing Order is filed, compliance withthis Ordermust occurno laterthan sevenbusiness days from the date ofentry ofthis Order as required by Tennessee Code Annotated section 50-6-239(d)(3). 6The 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 ofthis 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 Unitby email at WCCompliance.Program@tn.gov. ENTERED March 6, 2019.

CourtofWorkers' Compensation Claims

APPENDIX Technical Record: 1. Petition for BenefitDetermination 2. Dispute CertificationNotice 3. Motions

- Blevins' Motionto CompelDiscovery 4. Court Order

- Agreed Order for Extension ofTimeto Respondto Discovery 5. Court Order

- Show Cause Order 6. DocketingNotice

- Show Cause Hearing 7. CourtOrder

- Amended ShowCause Order 8. Request for Expedited Hearing 9. DocketingNotice

- ExpeditedHearing 10. CourtOrder

- OrderFollowing Show Cause Hearing 11. Affidavit

- Keith Blevins 12. Court Order

- Agreed Order for Continuance ofExpeditedHearing 13. DocketingNotice

- ExpeditedHearing 14. EmployeeNotice ofFiling

- Medical Records 15. EmployerNotice ofFiling

- Medical Records 16. EmployeeNotice ofFiling

- 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.

7Exhibits: 1

. Keith Blevins' Affidavit 2. Expedited Request for Investigation Report 3

. Employer's Medical Records of: • CoffeyFamily Medical Clinic • Big South Fork Medical Center 4. Employee's Medical Records & Expenses ofTennessee Orthopedic Clinic 5. Employee's Medical Records &Expenses ofMethodist Medical Center 6. Employee'sMedical Records & Expenses ofBig South ForkMedical Center 7. Employee's Medical Records & Expenses of Parkwest Medical Center 8. Photographs 9. EmployeeMedical Bill Summary 10. Hourly logs 11. TextMessages

CERTIFICATE OF SERVICE I certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients by the following methods ofservice on March 6, 2019. Name Certified Mail Chris W. Beavers, Employee'sAttorney Michael T. Grubbs, Employer'sAttorney Fax Email Service sentto: 

## x chrisbeavers@banksandjones.com



## x mcraig-grubbs@fksclaw.com

UM, Court Clerk WC.CourtClerk@tn.gov

8