FILED 

TN COURIOF 

'"ORKIRS' COl.IP . S"'\.TION 

ct.mrs 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT KINGSPORT 

Time 12:13 PM 

AUGUSTIN GALINDO (HURTADO}, 

Employee, 

) Docket No.: 2016-02-0223 

) 

v. 

NETO'S DRYWALL, LLC, 

Self-Insured Employer. 

) State File No.: 3199-2016 

) 

) Judge Pamela B. Johnson 

EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS 

(Decision on the Record) 

This matter came before the undersigned Workers' Compensation Judge upon the 

Request for Expedited Hearing filed by Augustin Galindo. Neto's Drywall, LLC did not 

file a Response. The Court found it needed no additional information to determine 

whether Mr. Galindo is likely to prevail at a hearing on the merits and elected to decide 

the issues upon a review of the written materials and without an evidentiary hearing. The 

Court issued a Docketing Notice on April 13, 2017, listing the documents to be 

considered. The Court gave Mr. Galindo and N eto' s Drywall until April 25, 2017, to file 

objections and/or position statements. Neither Mr. Galindo nor Neto's Drywall filed 

objections or position statements. 

The central legal issue is whether Mr. Galindo is likely to prevail at a hearing on 

the merits on entitlement to medical and temporary total disability benefits. For the 

reasons set forth below, the Court holds Mr. Galindo came forward with sufficient 

evidence demonstrating he is likely to prevail at a hearing on the merits. Accordingly, 

this Court concludes Mr. Galindo is entitled to the requested benefits. 

History of Claim 

A review of the written materials revealed the following facts. Mr. Galindo is a 

twenty-eight-year-old resident of Washington County, Tennessee. Ernesto Reyes Moto, 

owner ofNeto's Drywall, employed Mr. Galindo as a drywall installer. 

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On February 3, 2016, while installing drywall at a Neto's Drywall jobsite, Mr. 

Galindo fell from a ladder, landed on the side of a bathtub, and sustained injury to his 

head and right side. At the time of the incident, Mr. Galindo stated he called out for help, 

but no one was around. Due to the immediate onset of pain, Mr. Galindo called his 

brother, who was working at the same jobsite, for help. Mr. Galindo's brother 

transported Mr. Galindo to Johnson City Medical Center for emergent care. The hospital 

listed his chief complaint as "fall from ladder." Following various diagnostic and 

laboratory testing, the attending physician, Dr. Garik T. Misenar, diagnosed a chest 

contusion and discharged Mr. Galindo with instructions to remain off work for two days. 

Mr. Galindo received a bill from Johnson City Medical Center for $10,144.00 for his 

February 3 admission. 

The following day, Shawn Jones completed an incident report. The report listed 

Mr. Galindo's supervisor as Gerardo Galindo and documented details of Mr. Galindo's 

fall from a stepladder onto a bathtub with injury to the right side of his rib cage. The 

incident reported listed Mr. Galindo's supervisor as Gerardo Galindo. It is unclear from 

the record whether Gerardo Galindo is Augustin Galindo's brother, who transported him 

to the hospital. Mr. Galindo returned to work on light duty on February 8. Neto's 

Drywall paid Mr. Galindo for the day of the incident and the two days he remained off 

work following the incident. 

Mr. Galindo filed a Petition for Benefit Determination (PBD) on May 2, 2016, 

seeking workers' compensation benefits for an injury sustained to his rib cage on 

February 3. The PBD noted Neto's Drywall did not have workers' compensation 

insurance coverage. The parties did not resolve the disputed issues through mediation, so 

the Mediator issued a Dispute Certification Notice (DCN) on July 15. Following a Show 

Cause Hearing, Mr. Galindo filed a Request for Expedited Hearing (REH), seeking 

payment of his medical bills. 

Because Neto's Drywall did not carry workers' compensation insurance, the 

Bureau received an Expedited Request for Investigation. The investigator noted Mr. 

Galindo suffered a February 3, 2016 injury, primarily within the course and scope of his 

employment for Neto's Drywall, which was uninsured since January 13, 2015. The 

investigator additionally noted Mr. Galindo notified the Bureau of the injury and Neto's 

Drywall's failure to secure workers' compensation insurance coverage when he filed his 

PBD on May 2, 2016. After interviewing Mr. Galindo and Mr. Reyes, the investigator 

confirmed the details of Mr. Galindo's work incident, medical treatment, report of injury, 

and subsequent return to work. The investigator further noted: Neto's Drywall 

determines the scope of the work and the work schedule; Mr. Galindo did not have the 

right of termination or the freedom to select and hire helpers; Neto's Drywall paid Mr. 

Galindo in cash but did not provide the tools for the work; and there was no freedom to 

offer services to other entities. 

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Findings of Fact and Conclusions of Law 

In order to grant Mr. Galindo the relief he seeks, the Court must apply the 

following legal principles. Mr. Galindo bears the burden of proof on all elements of his 

workers' compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2016). However, he 

need not prove every element of his claim by a preponderance of the evidence in order to 

obtain relief at an Expedited Hearing. McCord v. Advantage Human Resourcing, 2015 

TN Wrk. Comp. App. Bd. LEXIS 6, at *7- 9 (Mar. 27, 2015). Instead, at an Expedited 

Hearing, Mr. Galindo has the burden to come forward with sufficient evidence from 

which this Court can determine he is likely to prevail at a hearing on· the merits. !d. 

Employment Relationship 

In order to grant benefits to Mr. Galindo, the Court must first determine whether 

an employment relationship existed between the parties. The Workers' Compensation 

Law sets forth certain factors that the Court must consider in determining whether an 

employment relationship exists. The factors include: the right to control the conduct of 

the work, the right of termination, the method of payment, the freedom to select and hire 

helpers, the furnishing of tools and equipment, self-scheduling of working hours, and the 

freedom to offer services to other entities. Tenn. Code Ann.§ 50-6-102(12)(D)(i) (2016). 

The investigator's report revealed Neto's Drywall determined the scope of the 

work and the work schedule; Mr. Galindo did not have the right of termination or the 

freedom to select and hire helpers; Neto's Drywall paid Mr. Galindo in cash but did not 

provide the tools for the work; and there was no freedom to offer services to other 

entities. Based on the Bureau's report, the Court concludes Mr. Galindo came forward 

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

establishing he was an employee ofNeto's Drywall. 

Injury 

After establishing an employment relationship existed, the Court must next 

determine whether Mr. Galindo sustained an injury as defined by the Workers' 

Compensation Law. An injury is defined as "an injury by accident ... arising primarily 

out of and in the course and scope of employment that causes ... the need for medical 

treatment." Tenn. Code Ann. § 50-6-102(14). Further, an injury is "accidental" only if 

caused by a specific incident, or set of incidents, arising primarily out of and in the course 

and scope of employment. Tenn. Code Ann. § 50-6-102(14)(A). 

Here, Mr. Reyes told the Bureau investigator that Mr. Galindo was installing 

drywall when he fell off the ladder on February 3, 2016. Both Mr. Galindo and Mr. 

Reyes described in detail how the injury occurred. Again, based on the statements of Mr. 

Reyes and Mr. Galindo along with Mr. Galindo's affidavit, the Court holds Mr. Galindo 

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came forward with sufficient evidence demonstrating he is likely to prevail at a hearing 

on the merits that he sustained an injury arising primarily out of and in the course and 

scope of his employment. 

Medical Benefits 

Turning to the requested medical benefits, the Workers' Compensation Law 

provides, "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." Tenn. Code Ann. § 50-6-204(a)(1)(A) (2016); see 

also !d. at 50-6-204(b)(1). Further, "The injured employee shall accept the medical 

benefits afforded ... provided that in any case when the employee has suffered an injury 

and expressed a need for medical care, the employer shall designate a group of three (3) 

or more independent reputable physicians, surgeons, chiropractors or specialty practice 

groups if available in the injured employee's community ... from which the injured 

employee shall select one (1) to be the treating physician." !d. at 50-6-204(a)(3). 

Conversely, an employer who elects to deny a claim runs the risk that it will be held 

responsible for medical benefits obtained from a medical provider of the employee's 

choice and/or that it may be subject to penalties for failure to provide a panel of 

physicians and/or benefits in a timely manner. McCord, 2015 TN Wrk. Comp App Bd. 

LEXIS at* 10. 

Here, Neto's Drywall did not provide Mr. Galindo with medical benefits as 

required by section 50-6-204(a)(l)(A). Moreover, Neto's Drywall did not provide Mr. 

Galindo with a panel of physicians as required by section 50-6-204(b)(l). Accordingly, 

this Court concludes Mr. Galindo came forward with sufficient evidence demonstrating 

he is likely to prevail at a hearing on the merits on his entitlement to past medical 

expenses and entitlement to a panel of physicians. Therefore, this Court holds Neto's 

Drywall is responsible for payment of the Johnson City Medical Center bill for 

$10,144.00. Additionally, Neto's Drywall shall provide Mr. Galindo with a panel of 

physicians as required by section 50-6-204(b )(1 ). 

Temporary Disability Benefits 

In addition to medical benefits, Mr. Galindo seeks temporary disability benefits. 

An injured employee is eligible for temporary disability benefits if: ( 1) the injured 

employee became disabled from working due to a compensable injury; (2) a causal 

connection exists between the injury and the inability to work; and (3) the injured 

employee established the duration of the period of disability. Jones v. Crencor, 2015 TN 

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

In the present case, the record reflects the Johnson City Medical Center attending 

physician, Dr. Misenar, discharged Mr. Galindo with instructions to remain offwork for 

4 
two days. The record further reflects Neto's Drywall paid Mr. Galindo for the day of 

injury as well as the two days he remained off work. Moreover, Mr. Galindo returned to 

work on February 8, fewer than seven days following the work injury. An injured 

employee is not entitled to disability benefits during the first seven days of disability 

resulting from the work injury, excluding the date of injury. Tenn. Code Ann. § 50-6-

205(a). Therefore, at this time, the Court concludes Mr. Galindo did not come forward 

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

his entitlement to temporary disability benefits. 

Entitlement to Payment of Benefits from Uninsured Employers Fund 

Although this Court holds Neto's Drywall must provide Mr. Galindo with past and 

ongoing medical benefits, it is unclear whether payment will be forthcoming since Neto's 

Drywall did not have workers' compensation insurance on the date of injury and it has 

not participated in the litigation of this claim. However, under section 50-6-802( e )(1 ), 

the Bureau has discretion to pay limited temporary disability and medical benefits to "any 

employee who suffered an injury arising primarily within the course and scope of the 

employee's employment with an employer who failed to secure the payment of 

compensation at the time the eligible employee suffered the injury." Tenn. Code Ann. § 

50-6-801 (d). 

To be eligible for payments from the Bureau, the employee must satisfy the 

following criteria: 

1. The employee was employed by an employer who failed to secure payment of 

compensation; 

2. The employee suffered an injury on or after July 1, 2015, primarily within the 

course and scope of employment, at a time when the employer had failed to secure 

the payment of compensation; 

3. The employee was a Tennessee resident on the date of injury; and 

4. The employee provided notice to the Bureau of the injury and of the failure of the 

employer to secure the payment of compensation within a reasonable period of 

time, but in no event more than sixty days, after the date of the injury. 

!d. at§ 50-6-801(d)(l)-(4). 

Based upon the Bureau's Expedited Request for Investigation report, the Court 

finds as follows: 

1. Mr. Galindo was employed by Neto's Drywall, which failed to carry workers' 

5 
compensation insurance; 

2. Mr. Galindo suffered an injury on or after July 1, 2015, primarily within the 

course and scope of employment, at a time when Neto's Drywall failed to secure 

the payment of compensation; 

3. Mr. Galindo was a Tennessee resident on February 3, 2016, the date of the injury; 

and, 

4. Mr. Galindo provided notice to the Bureau of the injury and of the failure of 

Neto's Drywall to secure the payment of compensation within a reasonable period 

of time, but later than sixty days after the date of injury. 

Based upon the record before it at this time, this Court holds Mr. Galindo failed to 

come forward with sufficient evidence demonstrating he is likely to prevail at a hearing 

on the merits in satisfying the notice requirement of section 50-6-801 (d)( 4 ). 

Accordingly, the Court holds Mr. Galindo is not eligible to receive medical benefits from 

the Uninsured Employers Fund at this time. This Order shall not prohibit Mr. Galindo 

from filing a new Expedited Hearing should he wish to submit additional documentation 

or evidence establishing the notice requirement for eligibility of benefits from the 

Uninsured Employers Fund. 

IT IS, THEREFORE, ORDERED as follows: 

1. Neto's Drywall shall pay Johnson City Medical Center the amount of $10,144.00 

for Mr. Galindo's February 3, 2016 treatment. Additionally, Neto's Drywall shall 

provide Mr. Galindo with a panel of physicians as required by section 50-6-

204(b)(1). 

2. Mr. Galindo is not entitled to temporary disability benefits at this time. 

3. Mr. Galindo is not eligible to receive medical benefits from the Uninsured 

Employer's Fund at this time. 

4. This matter is set for a Scheduling Hearing on June 29, 2017, at 10:30 a.m. 

Eastern Time. The parties must call (865) 594-0091 or (toll-free) (855) 543-5041 

to participate in the Scheduling Hearing. Failure to appear by telephone may 

result in a determination of the issues without your further participation. 

5. 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) 

(2016). The Insurer or Self-Insured Employer must submit confirmation of 

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compliance with this Order to the Bureau by email to 

WCC mpliance.Pr gram@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. 

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

Penalty Unit by email at W ornplianc .Program@tn.g v or by telephone at 

(615) 253-1471 or (615) 532-1309. 

ENTERED this the lOth day ofMay, 2017. __,------' 

QI\S~ HON. PAMELA B. JOHNSON 

Workers' Compensation Judge 

APPENDIX 

The Court reviewed the entire case file in reaching its decision. Specifically, the 

Court reviewed the following documents, marked as exhibits for ease of reference: 

Exhibits: 

I. Petition for Benefit Determination 

2. Dispute Certification Notice issued July 15, 2016, with attachments (50 pages) 

including: 

• Johnson City Medical Center Medical Bill for admission date February 3, 2016 

• Incident/ Accident Report Form 

• JCMC Discharge Instructions 

• JCMC Emergency Department Return to Work Release 

• Mountain States Health Alliance Authorization for Release of Medical 

Information and Medical Records 

3. Show Cause Order, filed October 19, 2016 

4. Expedited Request for Investigation Report, filed October 27, 2016 

5. Order Quashing Dispute Certification Notice and Referral to Mediation, Issued 

November 4, 2016 

6. Dispute Certification Notice, filed November 18, 2016, with duplicate attachments 

(61 pages) 

7. Request for Expedited Hearing, filed Decemberl9, 2016 

8. Affidavit, filed February 16, 2017 

9. Docketing Notice for a Decision on the Record, filed April 13, 2017 

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CERTIFICATE OF SERVICE 

I hereby 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 this the 1Oth day 

ofMay, 2017. 

Name Certified Fax 

and 

Regular 

Mail 

Augustin Galindo X 

Self-Represented 

Employee 

Neto's Drywall, LLC, X 

Self-Represented 

Employer 

Email 

X 

8 

Service sent to: 

Augustin Galindo 

1810 Unaka A venue 

Johnson City, TN 37601 

esmeCig1 @.,.gmaiJ .com 

Ernesto Reyes Mota 

Neto's Drywall, LLC 

41 Goose Creek Road 

Swannanoa, NC 28778 

SHRUM, Court Clerk 

.CourtCierk@tn.gov