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

Evodio Davila, Employee, 

### v. Diversified Builders, Inc., Employer, And Builders Mutual Insurance, Insurance Carrier. ) DocketNo.: 2015-08-0465 ) ) State File No.: 29117-2015 ) ) Judge: Jim Umsted ) ) )

EXPEDITED HEARING ORDERDENYING REQUESTED BENEFITS

This case came before the undersigned Workers' Compensation Judge on September 20, 2016, upon the Request for Expedited Hearing filed by the employee, Evodio Davila, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is whether the employer, Diversified Builders, Inc., must provide additional medical and temporary disability benefits for Mr. Davila's alleged work-related injuries. The central legal issue is whether Mr. Davila can demonstrate a likelihood of success at a trial on the merits on these issues. For the reasons set forth below, the Court holds Mr. Davila is unlikely to succeed at a hearing on the merits in proving entitlementto therequestedbenefits. 1
History ofClaim
The following facts were established at the Expedited Hearing. Mr. Davila is a forty-six-year-old resident of Shelby County, Tennessee. He claimed he sustained multiple injuries after falling from a walk board while working for Diversified Builders
on April9, 2015.
After the accident, Diversified Builders provided Mr. Davila with a panel of physicians from which he selected D

. r. Nahum Beard from Campbell's Clinic as his

1A complete listing ofthe technical record and exhibits is attachedto this Order as an appendix. 1treating physician. Dr. Beard oversaw medical care for Mr. Davila's left knee injury, treating the knee conservatively with physical therapy and medication. However, he referred Mr. Davila to specialists for his other injuries, which included a head injury and left shoulder injury, among others.

In a prior Expedited Hearing Order issued on May 10, 2016, this Court required Mr. Davila to provide a list of his medical providers for the previous ten years to Diversified Builders so it could obtain a complete set ofmedical records to supply to Dr. Beard. Italso ordered DiversifiedBuilders to schedule an appointment withDr. Beardto examine Mr. Davila, review all relevant medical records, and treat injuries he found compensable. Thereafter, Diversified Builders scheduled a follow-up appointment for Mr. Davila with Dr. Beard, and Dr. Beard ordered a series ofinjections for Mr. Davila's left knee. On July 21, 2016, Mr. Davila was scheduled for the third injection in the series, buthe had a family emergency arise thatrequired himto leave the countrypriorto his appointment. Due to Mr. Davila's failure to attend the appointment, Diversified Builders stopped his benefits, citing medical non-compliance.2 Mr. Davila filed a new Request for Expedited Hearing on August 12, 2016, based on this termination of his benefits. Immediately prior to the Expedited Hearing held on September 20, 2016, the Court heard Mr. Davila'sMotion for Sanctions for Failure to Pay Weekly Compensation and Creating Undue Delay ofProceedings3 as well as Diversified Builders' Motion for Sanctions for Failure to Comply with Order. Mr. Davila asked for sanctions under Rule 11 ofthe Tennessee Rules ofCivil Procedure and 28 United States Code section 1927, arguing that Diversified Builders was causing undue delay in theproceedings through its filings and discovery. Diversified Builders sought sanctions for Mr. Davila's failure to provide a complete list ofmedical providers per the Court's May 10, 2016 order. The Courttookboth ofthese motions under advisement. During the hearing, Mr. Davila specifically requested the Court to order Diversified Builders to pay ongoingtemporary disability benefits from July 21, 2016. He also asked the Court to require Diversified Builders to pay the medical bills associated with an unauthorized visit to St. Francis Hospital on June 1, 2016. He claimed this visit related to his April 9, 2015 fall because he developed a rash down his left leg after his authorizedphysicaltherapistputblacktape on his leg to stabilize his knee.

2 Diversified Builders reinstated Mr. Davila's benefits upon his return to Dr. Beard for the third injection in August 2016. However, the parties submitted no medical records to show the exact date Mr. Davila returned to Dr. Beard for treatment.

3 The Court also heard Mr. Davila's Motion to Determine Compensability ofMedical Treatment, which the Court determined should be decided as part ofthe Expedited Hearing

. It involved unauthorized medical treatment Mr. Davila obtained at St. Francis Hospital on June I, 2016. 2Diversified Builders argued it has paid for all authorized treatment recommended by Dr. Beard and has reinstated Mr. Davila's temporary disability benefits. It further contended Mr. Davila offered no medical proof that his June 1, 2016 treatment for cellulitis at St. Francis Hospital causallyrelatedto his work injury ofApril 9, 2015. Findings ofFactand Conclusions ofLaw
GeneralLegalPrinciples

Atan ExpeditedHearing, Mr. Davilaneed notprove every element ofhis claimby
a preponderance ofthe evidence in order to recover temporary disability and/or medical benefits. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. 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)(1) (2015). This lesser evidentiary standard "does not relieve an employee ofthe burden ofproducing evidence ofan injury by accident that arose primarily out ofand in the course and scope ofemployment at an expedited hearing, but allows some reliefto be granted ifthat evidence does not rise to the level ofa 'preponderance ofthe evidence."' Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). In analyzing whether he has met his burden, the Court will not remedially or liberally construe the law in his favor, but instead shall construe the law fairly, impartially, and in accordance with basic principles ofstatutory construction favoring neither Mr. Davila nor Diversified Builders. See Tenn. CodeAnn. § 50-6-116 (2015).

Mr. Davila'sMotionforSanctionsforFailure to Pay Weekly Compensation andCreating Undue Delayof Proceedings

Based on the statements ofcounsel and the evidence presented, the Court holds Diversified Builders did not fail to pay weekly compensation or create an undue delay of theproceedings. Therefore, the Courtdenies 

### Mr. Davila's motion for sanctions. DiversifiedBuilders'Motionfor Sanctions forMr. Davila'sFailure to Provide a CompleteListof MedicalProviders (per the Court'sMay 10, 2016order)

Based on the statements ofcounsel and the evidence presented, the Court holds Mr. Davila and his counsel made a good faith effort to comply with the Court's prior order. The Courtbelieves Mr. Davila'stestimonywhere he statedhe provided a list ofall the medical providers he could remember. He admitted he may not remember all ofhis past physicians, but he believes he listed most of them. Therefore, the Court denies Diversified Builders' request for sanctions.

3MedicalBenefits

Pursuant to Tennessee Code Annotated section 50-6-204(a)(l)(A) (2015), "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." It is traditionally the employee's burden "to offer expert medical proofof causation ' [ e]xcept in the most obvious, simple and routine cases."' Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015) (citing Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008)).
The Court will first consider Mr. Davila's request to require Diversified Builders to pay the medical bills associated with an unauthorized visit to St. Francis Hospital on June 1, 2016. He claimedthis visit related to his April 9, 2015 fall because he developed
arash down his left leg after his authorized physical therapistput black tape on his leg to stabilize his knee. The Court finds Mr. Davila provided no medical evidence at the Expedited Hearing to establish a causal connection between this treatment and the work injury. Therefore, the Courtholds he is not likely to prevail at a hearing on the merits on this issue.
The Courtwill next considerMr. Davila'srequest for medical treatment with other specialist physicians. Mr. Davila is currently treating with Dr. Beard and the Court will not disturb that status. The Court finds Mr. Davilapresented no medical evidence at the Expedited Hearing showing he is entitled to any other medical treatment. Therefore, the Courtholds he is not likely to prevail at ahearing on the merits on this issue. TemporaryDisabilityBenefits

Mr. Davila claimed entitlement to a period oftemporary disability benefits while he was out ofthe country on personal business, and not receiving scheduled medical treatment. An injured worker is eligible for temporary disability benefits if: (1) the worker became disabled from working due to a compensable injury; (2) there is a causal connection between the injury and the inability to work; and (3) the worker established the duration ofthe period of disability. Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978). According to Tennessee Code Annotated section 50-6-204(b)(8) (2015), if
an injured employee refuses to accept the medical services provided by the employer, the injured employee's right to compensation shall be suspended while the injured employee continues to refuse.

Mr. Davila submitted no medical proof to support his claim for additional temporary disability benefits. Diversified Builders stated it has provided all temporary disability benefits due and will continue paying temporary disability benefits which may become due pursuant to treatment with Dr. Beard. However, citing medical non4compliance, Diversified Builders stopped paying temporary disability benefits July 21, 2016, when Mr. Davila missed a scheduled a scheduled third injection by Dr. Beard due to leaving the country for a "family emergency." He returned a few weeks later and received the third injection. Diversified Builders agreed to resume payment oftemporary disabilitybenefits on the date Mr. Davilareturned and receivedthe third injection. Based
on the above legal principals, the Court determines Mr. Davila is not entitled to temporary disability benefits whilehe is out ofthe country attendingtopersonalbusiness, and not receiving scheduled medical treatment. Therefore, the Court holds Mr. Davila has failed to showhe is likelytoprevail at ahearing onthe merits onthis issue.

ITIS, THEREFORE, ORDERED as follows:

1. Mr. Davila's claim against Diversified Builders for the requested medical and temporary disabilitybenefits is denied atthis time.

2. This matter is set for a Status Hearing on December 12, 2016, at 10:00 a.m. Centraltime.

ENTEREDthis the26th dayofSeptember, 2016.

JudgeJimUmsted CourtofWorkers' Compensation Claims

Status Conference:

A Status Conference has been set with Judge Jim Umsted, Court ofWorkers' Compensation Claims. You must call 615-532-9550 or toll-free at 866-943-0014 to participatein the InitialHearing.
Please Note: You must call in on the scheduled date/time to participate. Failure to call in may result in a determination of the issues without yourfurther participation.

Right to Appeal:
Tennessee Law allows any partywho disagrees withthis ExpeditedHearing Order to appeal the decision to the Workers' Compensation Appeals Board. To file aNotice of Appeal, you must:

51. Completethe enclosed form entitled: "ExpeditedHearingNotice ofAppeal."

2. File the completed form with the Court Clerk within seven business days ofthe date the Workers' CompensationJudge enteredthe ExpeditedHearing Order.

3. Serve a copy ofthe Expedited HearingNotice ofAppeal uponthe opposingparty.
4. The appealing party is responsible for payment ofa filing fee in the amount of $75.00. Within ten calendar days after the filing ofa notice ofappeal, payment mustbe receivedby check, money order, orcredit cardpayment. Payments canbe made in person at any Bureau office or by United States mail, hand-delivery, or other delivery service. Inthe alternative, the appealingparty may file anAffidavit ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice ofAppeal ormustbe filed withinten calendar days thereafter. The Appeals Board will consider the Affidavit ofIndigency and issue an Order granting or denying the request for a waiver of the filing fee as soon thereafter as is practicable. Failure to timely pay the filing fee or file the Affidavit of lndigency in accordance with this section shall result in dismissal of the appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal, may request, from the Court Clerk, the audio recording of the hearing for the purpose ofhaving a transcript prepared by a licensed court reporter and filing it with the Court Clerk within ten calendar days of the filing of the Expedited Hearing Notice ofAppeal. Alternatively, the parties may file ajoint statement of the evidence within ten calendar days of the filing of the Expedited Hearing Notice of Appeal. The statement of the evidence must convey a complete and accurate account of what transpired in the Court of Workers' Compensation Claims and must be approved by the workers' compensation judge before the record is submittedto the Clerk oftheAppeals Board.

6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file suchposition statement with the Court Clerkwithin five business days ofthe expiration ofthe time to file a transcript or statement of the evidence, specifying the issues presented for review and including any argument in support thereof. A party opposing the appeal shall file a response, if any, with the Court Clerk within five business days ofthe filing ofthe appellant's position statement. All position statements pertaining to an appeal of an interlocutory order should include: (1) a statement summarizing the facts ofthe
case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition ofthe case as a result ofthe expedited hearing; (3) a

6statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, orother authority. APPENDIX
Exhibits: 1. Form C-42 Agreement Between Employer/Employee Choice ofPhysician, dated April 26, 2015; 2. Form C-42 Agreement Between Employer/Employee Choice ofPhysician, dated October 6, 2015; 3. Mr. Davila's list ofmedical providers for thepasttenyears; 4. Collective exhibit ofphotographs ofMr. Davila's leftknee; 5. Medical records from St. Francis Hospital, dated June 1, 2016; 6. Medical bill from St. FrancisHospital for date ofservice June 1, 2016; 7. Medicalrecord from St. Francis Hospital, datedApril11, 2010; and 8. Intake form from St. FrancisHospital, datedApril11, 2010.
Technical record:4 1. Petition for BenefitDetermination, filed October 6, 2015; 2. Dispute CertificationNotice, filed onNovember 10, 2015; 3. Petition for BenefitDetermination, filed November 17, 2015; 4. Dispute CertificationNotice, filed on December7, 2015; 5. Expedited Hearing Order for MedicalBenefits, filed May 10, 2016; 6. Request for ExpeditedHearing, filed August 12, 2016; 7. Mr. Davila's Motion for Sanctions for Failure to Pay Weekly Compensation and CreatingUndueDelay ofProceedings filed August 12, 2016; 8. Diversified Builders' Motion for Sanctions for Failureto Comply with Order, filed August 22, 2016; 9. DiversifiedBuilders' Response to Mr. Davila'sMotion for Sanctions for Failureto Pay Weekly Compensation and Creating Undue Delay of Proceedings, filed August 31, 2016; 10.Mr. Davila's Motion to Determine Compensability ofMedical Treatment, filed September 7, 2016; 11.Diversified Builders' Response to Mr. Davila's Motion to Determine Compensability ofMedicalTreatment, filed September 13, 2016; 12.DiversifiedBuilders' Pre-Hearing Brief, filed September 13, 2016; and 13.DiversifiedBuilders' Supplemental Pre-HearingBrief, filed September 19, 2016.

4 The Court did not consider attachments to Technical Record filings unless admitted into evidence during the Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as allegations unless established by the evidence.

7CERTIFICATE OFSERVICE

I hereby certify that a true and correct copy of the foregoing was sent to the following recipients by the following methods of service on this the day of September, 2016.

Name Marilyn Sellers-Hobbs, Employee'sAttorney CarolinaMartin, Employer'sAttorney Certified Via Via EmailAddress Mail Fax Email X mhobbs@bellsouth.net

X carolina.martin@Retersonwhite.com

PennyPatterson-Shrum,Clerk CourtofWorkers' Compensation Claims WC.CourtClerk@tn.gov

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