Delgado, Jose v. Pankratz Construction and Valles Roofing , 2015 TN WC 40 ( 2015 )

FILED
April 28, 20 IS
T;.; CO URTOF
WORKERS' CO~IPE :'< SA TIO:'<
C LAHIS
Time: 12:02 P~l
COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
EMPLOYEE: JOSE DELGADO DOCKET#: 2014-02-0017
STATE FILE#: 77084-2014
EMPLOYER: VALLES ROOFING DATE OF INJURY: 08/07/2014
INSURANCE CARRIER: LIBERTY MUTUAL
EMPLOYER: PANKRATZ CONSTRUCTION DOCKET#: 2015-02-0011
STATE FILE#: 5046-2015
INSURANCE CARRIER: BUILDERS PREMIER DATE OF INJURY: 08/07/2014
EXPEDITED HEARING ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge on April 8,
2015, upon the Requests for Expedited Hearing filed by Jose Delgado (Mr. Delgado), the Employee,
on March 23,2015, pursuant to Tennessee Code Annotated section 50-6-239 (2014) to determine if
Valles Roofing (Valles), the subcontractor, and Liberty Mutual, its insurance carrier, or Pankratz
Construction (Pankratz), the general contractor, and Builders Premier, its insurance carrier, is
obligated to provide temporary disability benefits and medical benefits. The parties agreed to defer
the issues of Mr. Delgado' s average weekly wage and compensation rate and his entitlement to
temporary disability benefits until an authorized treating physician treats Mr. Delgado and renders an
opinion on his work status from the date of the accident to present.
ANALYSIS
Issue
Whether Valles and Liberty Mutual or Pankratz and Builders Premier is responsible for
payment of medical benefits.
Evidence Submitted
The following witnesses testified:
• Mr. Jose Delgado
• Mr. Ranferi Velediaz -Roofer for Valles Roofing
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• Oscar Bahena-Owner Valles Roofing
• Jason Pankratz-Owner Pankratz Construction.
The Court designated the following as the technical record:
• Petition for Benefit Determination
• Dispute Certification Notice
• Request for Expedited Hearing.
The Court did not consider attachments to the above filings unless admitted into evidence
during the Expedited Hearing. The Court considered factual statements in the above filings as
allegations unless established by the evidence.
The Court admitted the following into evidence:
• Exhibit 1: Medical Bills for Ranferi Velediaz (20 pages)
• Exhibit 2: The Daily Times News Article on the Accident (1 page)
• Exhibit 3: Medical Bills for Mr. Delgado (12 pages)
• Exhibit 4: Certificate of Liability Insurance Policy Number 10-15628-14132-120444 (1
page)
• Exhibit 5: Certificate of Liability Insurance Policy Number WC5-35S-540883-014 (1
page)
• Exhibit 6: Liberty Mutual Contract oflnsurance Policy Number WC5-35S-540883-014
(43 pages)(marked for identification only).
Stipulations of the Parties
The Parties submitted and admitted the following written stipulated facts:
• Jose Delgado was employed with Valles Roofing on or about August 7, 2014.
• While acting in the course and scope of his employment, Jose Delgado suffered a fall when a
roof collapsed on a home in Maryville, Tennessee.
• Jose Delgado suffered injuries arising from and in the course and scope of his employment
with Valles Roofing on or about August 7, 2014.
• Jose Delgado was treated at the University of Tennessee Medical Center for the injuries he
sustained as a result of the work-related accident on or about August 7, 2014. Mr. Delgado
also incurred medical bills from Rural Metro Ambulance, University General Surgeons, P.C.,
University Radiology, and Rural Metro as a result of his work-related injuries.
• Liberty Mutual Insurance Company filed a Notice of Denial of Jose Delgado's workers'
compensation claim with the Tennessee Department of Labor Workers' Compensation
Division on or about September 23, 2014.
• Builders Premier Insurance filed a Notice of Denial of Jose Delgado's workers'
compensation claim with the Tennessee Department of Labor Workers' Compensation
Division on or about September 30, 2014.
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• Valles Roofing was a "subcontractor" of Pankratz Construction as that term is used at T.C.A.
§ 50-6-901 et seq. at the work site where Mr. Delgado was injured.
• Pankratz Construction was a "general contractor" as that term is used in T.C.A. § 50-6-901 et
seq. at the work site where Mr. Delgado was injured.
• Jose Delgado has not been provided any medical benefits or temporary total disability
benefits by Valles Roofing or its insurer.
• Jose Delgado has not been provided any medical benefits or temporary disability benefits by
Pankratz Construction or its insurer. 1
History of Claim
Mr. Delgado worked as a roofer for Valles. Valles served as a sub-contractor on various sites
for Pankratz. On August 7, 2014, Mr. Delgado and other workers roofed a home built by Pankratz.
Mr. Delgado fell when an overhang collapsed. He sustained injuries and received medical treatment
from Rural Metro Ambulance, University General Surgeons, P.C., University Radiology, and other
providers.
Mr. Oscar Bahena owns Valles, a Tennessee company. He went to Lilburn, Georgia, to
American Services Group, LLC (American), to file his income taxes and obtain workers'
compensation insurance. Mr. Bahena knew that he had to obtain general liability and workers'
compensation insurance to work on Pankratz's sites. He purchased a workers' compensation
insurance policy from Liberty Mutual through American and paid the insurance premiums to
American. He has never seen a copy of the contract for the insurance he purchased.
Pankratz, a general contractor, selected Valles to work as a roofing subcontractor on the
project in question. Pankratz required Valles to have proof of insurance. Prior to the incident in
question, and after requesting proof of insurance, Pankratz received a Certificate of Liability
Insurance from American. This form listed Liberty Mutual Insurance Corporation as the insurer.
This form contained the policy number 10-15628-14132-120444. Following the incident in
question, Pankratz obtained another Certificate of Liability Insurance from American listing Liberty
Mutual as the workers compensation carrier but with a policy number of WC5-35S-540833-014.
Both of policies indicated that workers' compensation coverage existed between March 15,2014,
and March 15,2015. Both forms indicated Oscar Bahena DBA Valles Roofing, 201 Grayson Drive,
Alcoa, TN 37701, as the insured entity.
Mr. Delgado's Petition for Benefit Determination (PBD) requested medical benefits. The
parties did not reach an agreement on the issue. This matter came before the Court on April 8, 2015.
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The Court recited the parties written stipulations verbatim. The parties failed to use the new "arising
primarily" statutory language for the stipulations when they referenced Mr. Delgado's injuries. The Court
finds that the parties intended to use the statutory language, as contained in Tennessee Code Annotated section
50-6-1 02( 12) (20 I 4), that Mr. Delgado's injuries arose primarily out of and in the course and scope of his
employment.
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Mr. Delgado's Contentions
Mr. Delgado contends that his injury arose primarily out of and in the course and scope of his
employment. He argues that he is entitled to medical benefits. He requests a panel of physicians and
payment of past medical expenses.
Valles's Contentions
Valles contends that it secured workers' compensation insurance with Liberty Mutual, and,
therefore, Liberty Mutual should pay benefits for Mr. Delgado's injuries. Valles asserts that it paid
premiums for its workers' compensation coverage. Valles further asserts that when Pankratz
requested proof of coverage, Liberty Mutual's agent sent a Certificate of Insurance to Pankratz.
Liberty Mutual's Contentions
Liberty Mutual contends that it provided workers' compensation coverage for Valles, but
only for work performed in the State of Georgia. It asserts that a Certificate of Insurance is not a
contract or proof of a contract's provisions. It contends that the Court should hold Builders Premier,
the workers' compensation carrier for Pankratz, responsible for payment ofbenefits to Mr. Delgado.
Builders Premier's Contentions
Builder's Premier contends that Valles had workers' compensation insurance with Liberty
Mutual and, therefore, Pankratz is not responsible for payment of benefits to Mr. Delgado.
Findings of Fact and Conclusions of Law
Standard Applied
The Workers' Compensation Law shall not be remedially or liberally construed in favor of
either party but shall be construed fairly, impartially, and in accordance with basic principles of
statutory construction favoring neither the employee nor employer. Tenn. Code Ann. § 50-6-116
(2014). Tennessee Code Annotated section 50-6-239(c)(6) provides that "[u]nless the statute
provides for a different standard of proof, at a hearing, the employee shall bear the burden of proving
each and every element of the claim by a preponderance of the evidence." Tenn. Code Ann.§ 50-6-
239(c) (2014). A different standard of proof exists for the issuance of interlocutory orders at
Expedited Hearings than the standard of proof required at Compensation Hearings. McCord v.
Advantage Human Resourcing, No. 2014-06-0063 (Tenn. Work. Comp. App. Bd., March27, 2015).
A workers' compensation judge may enter an interlocutory order for medical or temporary benefits
upon a determination that the injured employee would likely prevail at a hearing on the merits.
Tenn. Code Ann. 50-6-239(d)(l) (2014); McCall v. Nat'! Health Care Corp., 100 S.W.3d 209,214
(Tenn. 2003).
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Factual Findings
The evidence proves that Mr. Delgado suffered injuries arising primarily out of and in the
course and scope of his employment as a result of fall from a roof on Pankratz's worksite. Mr.
Delgado worked as a roofer for Valles, a subcontractor for Pankratz. Valles had workers'
compensation insurance with Liberty Mutual. Mr. Delgado incurred medical bills for treatment he
received as a result of the accident.
Application of Law to Facts
The only issue is which party bears responsibility for payment of medical benefits.
Tennessee Code Annotated section 50-6-113 (2014) addresses the liability of contractors and
provides the following in pertinent part:
(a) A principal contractor, intermediate contractor or subcontractor
shall be liable for compensation to any employee injured while in
the employee of any of the subcontractors of the principal
contractor, intermediate contractor or the subcontractor engaged
and engaged upon the subject matter of the contract to the same
extent as the immediate employer.
(b) Any principal contractor, immediate contractor or subcontractor
who pays compensation under subsection (a) may recover the
amount paid from any person who, independently of this section,
would have been liable to pay compensation to the injured
employee, or from any intermediate contractor.
(c) Every claim for compensation under this section shall be in the
first instance presented to and instituted against the immediate
employer, but the proceedings shall not constitute a waiver of the
employee's rights to recover compensation under this chapter
from the principal or intermediate contractor; provided, that the
collection of full compensation from one (1) employer shall bar
recovery by employee against any others, nor shall the employee
collect from all a total compensation in excess of the amount for
which any of the contractors is liable.
Tenn. Code Ann.§ 50-6-113(a)-(c) (2014).
Liberty Mutual argued it only provided workers' compensation coverage for Valles in
Georgia according to its contract with Valles. However, this Court did not admit the contract into
evidence because Liberty Mutual did not have a witness that could authenticate the contract. The
only proof in evidence indicated that Liberty Mutual provided coverage for Valles in Tennessee. The
Certificate of Insurance listed Valles with a Tennessee address. Mr. Bahena testified he bought
workers' compensation for coverage in Tennessee. When Pankratz, a Tennessee company, requested
proof of insurance, Liberty Mutual's agent sent it to Pankratz in Tennessee.
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The evidence submitted proves that Valles had secured workers' compensation coverage
from Liberty Mutual for injuries sustained in Tennessee. Therefore, Liberty Mutual is the
responsible workers' compensation canier in this case. Mr. Delgado shall submit all previous
medical bills incurred as a result of this accident to Liberty Mutual for payment according to the fee
schedule. If additional information becomes available demonstrating that Liberty Mutual did not
provide Valles coverage in Tennessee, the Court may issue a further ruling clarifying the
responsibilities of the parties and addressing recoupment pursuant to Tennessee Code Annotated
section 50-6-113(b). Until the Court issues such an order, Liberty Mutual shall continue to cover the
cost of benefits pursuant to this order.
Because the parties stipulated that Mr. Delgado suffered an injury arising primarily out of and
in the course and scope of his employment, Liberty Mutual shall provide him a panel of physicians
pursuant to Tennessee Code Annotated section 50-6-204(a)(3)(i) (2014).
IT IS, THEREFORE, ORDERED as follows:
1. Liberty Mutual, workers' compensation carrier for Valles, is the responsible insurance canier
in this case.
2. Liberty Mutual shall provide a panel of physicians to Mr. Delgado pursuant to Tennessee
Code Annotated section 50-6-204(a)(3)(i), and shall pay for all prior medical treatment listed
in the parties stipulations and exhibit 3.
3. This Court reserves both the issue of Mr. Delgado's average weekly wage and compensation,
and the issue of his work status following the accident, pending an evaluation and
determination by the authorized treating physician.
4. This matter is set for Initial Hearing on June 18, 2015, at 2:00 p.m. Eastern Time.
ENTERED this the 28th day of April 2015.
B!!:K.``l:t:IG
Workers' Compensation Judge
Initial Hearing:
An Initial Hearing has been set with Judge Brian K. Addington, Court of Workers
Compensation. You must call 865-594-6538 or toll free at 855-543-5044 to participate in the Initial
Hearing.
Please Note: You must call in on June 18, 2015, at 2:00 p.m. Eastern Time to participate.
Failure to call in may result in a determination of the issues without your further participation. All
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conferences are set using Eastern Time (ET).
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal the
decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal".
2. File the completed form with the Court Clerk within seven (7) business days of the date the
Expedited Hearing Order was entered by the Workers' Compensation Judge.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The parties, having the responsibility of ensuring a complete record on appeal, may request
from the Court Clerk the audio recording ofthe hearing for the purpose ofhaving a transcript
prepared by a licensed court reporter and filing it with the Court Clerk within ten (1 0)
calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the
parties may file a statement of the evidence within ten (1 0) calendar days of the filing of the
Expedited Hearing Notice of Appeal. The statement of the evidence must be approved by the
Judge before the record is submitted to the Clerk of the Appeals Board.
5. If the appellant elects to file a position statement in suppmt of the interlocutory appeal, the
appealing party shall file such position statement with the Court Clerk within three (3)
business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues
presented for review and including any argument in support thereof. If the appellee elects to
file a response in opposition to the interlocutory appeal, appellee shall do so within three (3)
business days of the filing ofthe appellant's position statement.
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 28th day of April, 2015.
Name Certified First Via Fax Via Mail/Email Address
Mail Class Fax Number Email
Mail
L. Gibbons, Esq. X link@linkgibbonslaw .com
C. Torres, Esg. X torrescharles@bellsouth.net
M. Moore, Esq. X mmoore(t~Jbp_jlaw .com
J. Foster, Esq. X jfoster~.com
M. Dajcar, Esq. X mdajcar~hotmail.com
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RK OF THE COURT
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