Franco, Gilbert v. Jaime Rivera and Oscar Sanchaz, d/b/a J&O Construction and Remodeling , 2022 TN WC 39 ( 2022 )

FILED
May 04, 2022
12:25 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
GILBERTO FRANCO, ) Docket No. 2021-06-0167
Employee, )
v. ) State File No. 800136-2021
JAIME RIVERA and OSCAR )
SANCHEZ, d/b/a J&O ) Judge Joshua Davis Baker
CONSTRUCTION AND )
REMODELING, )
Employer. )
EXPEDITED HEARING ORDER
The Court held an expedited hearing based on a review of the record without an
evidentiary hearing and gave the parties until April 19, 2022, to file position statements
and object to the admissibility of documents.
Mr. Franco requested temporary disability and reimbursement of medical expenses
for an ankle fracture that occurred while working for J&O Construction and Remodeling,
which did not respond.
For the reasons below, the Court holds Mr. Franco is likely to prevail in proving he
suffered a work injury and is entitled to medical benefits. However, because he did not
present any evidence of loss to support an award, the Court must deny his request at this
time.
Claim History
According to Mr. Franco’s petition and declaration, J&O Construction hired him to
work as a carpenter for $15 per hour. On February 12, 2021, he fell from a ladder on a
jobsite and fractured his ankle.
Within a month of his injury, he filed a petition alleging that J&O Construction did
not have workers’ compensation insurance and had not provided any benefits. His
allegation prompted a Bureau investigator to complete an Expedited Request for
Investigation form.
On the form, the investigator reported that Mr. Franco told her J&O Construction
employed seven people, and she verified – through an NCCI search – that J&O
Construction had no workers’ compensation insurance policy.
On his petition, Mr. Franco reported a Tennessee address and checked a series of
boxes explaining his claim. According to those boxes and his brief explanations, he
reported his injury to “jaimie & oscar” but did not receive a panel, so he treated on his own
with “Dr. Mitchell.” The doctor took him off work from “2/12/21-3/4/21,” which was the
date of his injury to the date he filed his petition.
Similarly, in his declaration, Mr. Franco alleged that he had been disabled from
working for months because of his ankle fracture. He asked for help from J&O
Construction but did not receive any, and he has “collections calling [him] to pay [his]
hospital bills.”
Findings of Fact and Conclusions of Law
Mr. Franco need only present sufficient evidence at this stage that he is likely to
prevail at a final hearing. See Tenn. Code Ann. § 50-6-239(d)(1) (2021); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27,
2015).
First, Mr. Franco must show that he suffered an injury while working for an
employer subject to the Workers’ Compensation Law.
An employer uses “the services of not less than five (5) persons for pay[.]” Tenn.
Code Ann. §§ 50-6-102(13), 50-6-106(5). A work injury is “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).
Here, Mr. Franco stated in his petition and declaration he fractured his ankle in a
fall from a ladder at work. That assertion is unrefuted. And, an ankle fracture certainly
requires medical treatment. Mr. Franco asked J&O Construction for treatment but did not
receive a panel of physicians, forcing him to obtain his own treatment.
Mr. Franco also provided unrefuted evidence that seven people worked for J&O
Construction. Additionally, the investigator performed an NCCI search and found no
workers’ compensation insurance. So, the Court finds he worked for an uninsured
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employer subject to the Workers’ Compensation Law, and he suffered a work injury
necessitating treatment.
Even so, Mr. Franco presented no evidence showing an amount owed or spent on
treatment, nor any documentary evidence proving his treatment resulted from his
“compensable work injury or that the expenses were reasonable and necessary.” Mollica
v. EHHI Holdings, Inc., 2020 TN Wrk. Comp. App. Bd. LEXIS 22, at *7 (Apr. 21, 2020).
Further, Mr. Franco did not produce any medical evidence other than his own
hearsay testimony showing that his injury disabled him from work. See Jones v. Crencor
Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Without
this information, Mr. Franco cannot prove a loss, and therefore, the Court cannot discern
which benefits he is owed, including whether he needs treatment presently.
In sum, the Court holds that Mr. Franco is unlikely to prevail on his request for
temporary disability benefits and reimbursement of medical expenses without additional
evidence proving the amount of loss his work injury imposed. However, he is entitled to
a panel of physicians.
When an injury requires medical care, an employer is obligated to provide a panel of
physicians. Tenn. Code Ann. § 50-6-204(a)(3)(A)(i). The employer must offer the panel
“as soon as is practicable but no later than three (3) business days” after being notified of
the injury and the request for medical care. Tenn. Comp. R. & Regs. 0800-02-01-.06(1)
(2018). Where the employer fails to provide a panel, the employer may be assessed a civil
penalty. Id. at 0800-02-01-.06(2).
J&O Construction must give Mr. Franco a panel of physicians. Further, because
J&O Construction ignored its legal obligation to provide Mr. Franco a panel of physicians,
the Court refers it to the Compliance Unit of the Bureau of Workers’ Compensation for
appropriate action, if any, based on its failure to provide a panel of physicians as required
by the Workers’ Compensation Law.
Lastly, because J&O Construction did not have insurance, Mr. Franco may be
eligible to apply for discretionary benefit payments from the Bureau’s Uninsured
Employers Fund. See Tenn. Code Ann. § 50-6-802(e)(1). However, because Mr. Franco
failed to prove any of his losses, the Court reserves ruling on this issue.
IT IS ORDERED as follows:
1. The Court denies Mr. Franco’s request for temporary disability and reimbursement of
medical expenses at this time.
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2. J&O shall provide Mr. Franco a panel of physicians as required by Tennessee Code
Annotated section 50-6-204(a)(3)(A)(i).
3. The Court refers J&O Construction to the Compliance Unit of the Bureau of Workers’
Compensation for appropriate action based on its failure to provide a panel of
physicians within the deadline under Tennessee Compilation Rules and Regulations
0800-02-01-.06(1).
4. The Court sets this claim for a status hearing on May 16, 2022, at 11:00 a.m. Central
Time. The parties must call (615) 741-2113 or toll-free at (855) 874-0474 to
participate. Failure to call might result in a determination of the issues without the
party’s 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). 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.
For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program@tn.gov.
ENTERED May 4, 2022.
___________________________________
Joshua Davis Baker, Judge
Court of Workers’ Compensation Claims
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APPENDIX
1. Petition for Benefit Determination filed March 4, 2021
2. Dispute Certification Notice filed October 15, 2021
3. Request for Expedited Hearing filed February 28, 2022
4. Declaration of Gilberto Franco filed February 28, 2022
5. Expedited Request for Investigation Report dated March 24, 2021
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on May 4, 2022.
Name Certified Via Via Address
Mail Fax Email
Gilberto Franco, X govismartinez@aol.com
Self-represented
Employee
Jamie Rivera, X 2610 Madison Ave.
J&O Construction and Clarksville, TN 37043
Remodeling,
Employer
Compliance Program X WCCompliance.Program@tn.gov
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
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Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082