# FILED

TN COURIOF '"ORKIRS'COl.IP

.S"'\.TION 

## ct.mrs

TENNESSEE BUREAU OFWORKERS' COMPENSATION INTHE COURTOFWORKERS' COMPENSATIONCLAIMS AT KINGSPORT Time12:13 PM

AUGUSTIN GALINDO (HURTADO}, Employee, ) DocketNo.: 2016-02-0223 ) 

### v. NETO'SDRYWALL,LLC, Self-Insured Employer. ) StateFile No.: 3199-2016 ) ) JudgePamela B. Johnson

EXPEDITEDHEARING ORDERGRANTINGMEDICALBENEFITS (Decision on theRecord)

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 ofthe 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 Neto'sDrywall until April 25, 2017, to file objections and/or position statements. Neither Mr. Galindo nor Neto's Drywall filed objections orposition 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 concludesMr. Galindo is entitledto the requested benefits. HistoryofClaim A review ofthe written materials revealed the following facts. Mr. Galindo is a twenty-eight-year-old resident ofWashington County, Tennessee. Ernesto Reyes Moto, ownerofNeto's Drywall, employedMr. Galindo as a drywall installer.

1On February 3, 2016, while installing drywall at a Neto's Drywall jobsite, Mr. Galindo fell from a ladder, landed on the side ofa bathtub, and sustained injury to his head and right side. Atthe time ofthe incident, Mr. Galindo statedhe called out for help, but no one was around. Due to the immediate onset ofpain, Mr. Galindo called his brother, who was working at the same jobsite, for help. Mr. Galindo's brother transported Mr. Galindo to Johnson CityMedical 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 offwork 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 ofMr. Galindo's fall from a stepladder onto a bathtub with injury to the right side ofhis 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 ofthe incident and the two days he remained off workfollowing 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 notresolve 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 paymentofhis 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 ofhis employment for Neto's Drywall, which was uninsured since January 13, 2015. The investigator additionally noted Mr. Galindo notified the Bureau ofthe 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 confirmedthe details ofMr. Galindo's work incident, medical treatment, report ofinjury, and subsequent return to work. The investigator further noted: Neto's Drywall determines the scope ofthe work and the work schedule; Mr. Galindo did not have the right oftermination 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 otherentities.

2Findings ofFact and Conclusions ofLaw 

### In order to grant Mr. Galindo the relief he seeks, the Court must apply the following legal principles. Mr. Galindo bears the burden ofproofon all elements ofhis workers' compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2016). However, he need notprove every element ofhis claim by apreponderance ofthe evidence in order to obtain reliefat 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 whichthis Court can determinehe is likely to prevail at ahearing on·the merits. !d. EmploymentRelationship 

### 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 oftermination, the method ofpayment, the freedom to select and hire helpers, the furnishing oftools and equipment, self-scheduling ofworking 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 ofthe work and the work schedule; Mr. Galindo did not have the right oftermination 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 ahearing on the merits in establishinghe was an employee ofNeto'sDrywall. 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 "aninjury by accident

... arising primarily out ofand in the course and scope ofemployment that causes ... the need for medical treatment." Tenn. Code Ann. § 50-6-102(14). Further, an injury is "accidental" only if causedby a specific incident, or set ofincidents, arisingprimarily out ofand in the course and scope ofemployment. Tenn. Code Ann. §50-6-102(14)(A). Here, Mr. Reyes told the Bureau investigator that Mr. Galindo was installing drywall when he fell offthe ladder on February 3, 2016. Both Mr. Galindo and Mr. Reyes described in detail how the injury occurred. Again, based on the statements ofMr. Reyes and Mr. Galindo along with Mr. Galindo's affidavit, the Court holds Mr. Galindo 3came forward with sufficient evidence demonstrating he is likely to prevail at a hearing on the merits that he sustained an injury arising primarily out ofand in the course and scope ofhis employment. MedicalBenefits 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

...providedthat in any case when the employee has suffered an injury and expressed a need for medical care, the employer shall designate a group ofthree (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 ofphysicians 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 ofphysicians. 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). TemporaryDisabilityBenefits 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 ofthe period ofdisability. 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 4two days. The record further reflects Neto's Drywall paid Mr. Galindo for the day of injury as well as the two days he remained offwork. 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 ofinjury. Tenn. Code Ann. 

### § 50-6- 205(a). Therefore, at this time, the Court concludes Mr. Galindo did not come forward with sufficientevidence demonstrating he is likelyto prevail at a hearing onthe merits on his entitlementto temporary disability benefits. Entitlement to Paymentof Benefits from UninsuredEmployersFund Althoughthis Courtholds Neto'sDrywall mustprovideMr. Galindo withpast and ongoing medical benefits, it is unclearwhetherpaymentwill be forthcoming sinceNeto's Drywall did not have workers' compensation insurance on the date ofinjury and it has not participated in the litigation ofthis claim. However, under section 50-6-802(e)(1), the Bureauhas discretionto paylimitedtemporary disability andmedicalbenefitsto "any employee who suffered an injury arising primarily within the course and scope ofthe 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 ofemployment, at a time whenthe employerhad failed to secure thepaymentofcompensation; 3. The employeewas a Tennesseeresident onthe date ofinjury; and 4. The employeeprovided notice to the Bureau ofthe injury and ofthe failure ofthe employer to secure the payment of compensation within a reasonable period of time, butinno eventmore than sixty days, afterthe date ofthe 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' 5compensationinsurance; 2. Mr. Galindo suffered an injury on or after July 1, 2015, primarily within the course and scope ofemployment, at a time when Neto's Drywall failed to secure thepaymentofcompensation; 3. Mr. Galindo was a Tennessee resident on February 3, 2016, the date ofthe 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 ofcompensation within a reasonable period oftime, but laterthan sixty days afterthe date ofinjury. Based upon therecord before it atthis time, this Courtholds 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 Courtholds 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 UninsuredEmployers 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 entitledtotemporary disability benefits atthis time. 3. Mr. Galindo is not eligible to receive medical benefits from the Uninsured Employer'sFund atthis time. 4. This matter is set for a Scheduling Hearing on June 29, 2017, at 10:30 a.m. Eastern Time. Theparties 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 ofthe issues withoutyourfurther participation. 5. 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) (2016). The Insurer or Self-Insured Employer must submit confirmation of 6compliance with this Order to the Bureau by email to WCC mpliance.Pr gram@tn.gov no later than the seventh business day after entry ofthis Order. Failureto submit the necessary confirmationwithinthe period ofcompliance may result in apenalty 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. PAMELAB. JOHNSON Workers' Compensation Judge

APPENDIX The Court reviewed the entire case file in reaching its decision. Specifically, the Courtreviewedthe following documents, marked as exhibits for ease ofreference: Exhibits: I. Petition for BenefitDetermination 2. Dispute Certification Notice issued July 15, 2016, with attachments (50 pages) including: • Johnson City Medical CenterMedical Bill for admission date February 3, 2016 • Incident/ AccidentReportForm • JCMC DischargeInstructions • JCMC EmergencyDepartmentReturnto WorkRelease • Mountain States Health Alliance Authorization for Release of Medical Information andMedical Records 3. Show Cause Order, filed October 19, 2016 4. Expedited Request for InvestigationReport, filed October 27, 2016 5. Order Quashing Dispute Certification Notice and Referral to Mediation, Issued November4, 2016 6. Dispute Certification Notice, filed November 18, 2016, with duplicate attachments (61 pages) 7. Request for ExpeditedHearing, filed Decemberl9, 2016 8. Affidavit, filed February 16, 2017 9. DocketingNotice for aDecision onthe Record, filed April 13, 2017

7CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients by the following methods ofservice 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 sentto:

Augustin Galindo 1810UnakaAvenue Johnson City, TN 37601 esmeCig1@.,.gmaiJ.com Ernesto ReyesMota Neto'sDrywall, LLC 41 Goose CreekRoad Swannanoa,NC 28778

SHRUM, Court Clerk

.CourtCierk@tn.gov