Davenport, Ted v. Advanced Remodeling and Floor Covering, LLC , 2017 TN WC 26 ( 2017 )

FILED February 16,. :201.7 TNCOURTOF WORKERS '(JO~lPiE.NSATION CLtill.lS Time 1 :47PM TENNESSEE BUREAU OF WORKERS' COMPENSATION IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT NASHVILLE Ted Davenport, ) Docket No.: 2016-06-1403 Employee, ) v. ) State File No.: 56614-2016 Advanced Remodeling and Floor ) Covering, LLC, ) Judge Kenneth M. Switzer Employer. ) EXPEDITED HEARING ORDER GRANTING TEMPORARY TOTAL DISABILITY BENEFITS (DECISION ON THE RECORD) This matter came before the undersigned Workers' Compensation Judge on February 15, 2017, on Mr. Davenport's Request for Expedited Hearing seeking an on- the-record determination. Advanced Remodeling and Floor Covering, LLC did not respond to or object to the issuance of a decision on the record. The Court found it appropriate to issue a decision on the record, and the Clerk sent a docketing notice. Advanced Remodeling did not respond to the docketing notice listing the documentation to be considered, which is listed as an appendix to this Order, and neither party filed a position statement. The present focus of this case is whether Mr. Davenport is entitled to past temporary disability benefits. For the reasons set forth below, the Court grants his request. History of Claim This is Mr. Davenport's second request for temporary total disability benefits. After the previous in-person expedited hearing, the Court issued an order setting forth the facts, which the Court incorporates by reference into this Order. Specifically, the Court found Mr. Davenport satisfied all of the factors within Tennessee Code Annotated section 50-6-801 (d)( 1)-(4) and held he is eligible for medical and past temporary total disability benefits from the Uninsured Employers Fund. The Court additionally ordered Advanced 1 Remodeling to pay TTD benefits from June 16 through 23 and July 12 through 16, 2016. Mr. Davenport sought benefits beyond those dates, credibly testifying that he was unable to work. However, he failed to introduce expert medical proof supporting his request. Mr. Davenport now relies upon a December 16, 2016letter signed by Dr. Jonathan Nesbitt, which reads: Mr. Davenport had surgery with Dr. Jonathan Nesbitt on 9-19-2016, at Vanderbilt Medical Center. Mr. Davenport also had a post op appointment on 11-8-2016. The time between surgery and the post op appointment which was 9-19-2016 through 11-8-2016, Mr. Davenport was not able to work. At the post op appointment on 11-8-2016, Dr. Nesbitt released Mr. Davenport to return back to work with full activity. Findings of Fact and Conclusions of Law In order to award benefits in this case, Mr. Davenport must present sufficient evidence from which this Court can find he is likely to prevail at a hearing on the merits on entitlement to the requested benefits. To be eligible for the requested TTD benefits, Mr. Davenport must show: (1) he became disabled from working due to a compensable injury; (2) there is a causal connection between his injury and his inability to work; and (3) the duration of the period of disability. See Jones v. Crencor, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 20 15). Applying these principles, the Court held in the previous order that Mr. Davenport became injured from working due to a compensable injury and that a causal link existed between the injury and his inability to work. The Court now finds, based upon Mr. Davenport's previous testimony and Dr. Nesbitt's letter, that he was unable to work from September 19 through November 8, 2016, a total of seven weeks and one day. Since he established the duration of the period of his disability, Mr. Davenport is entitled to past TTD benefits. Mr. Davenport's compensation rate is $400 per week, which equates to $2,857.14 in past TTD benefits, immediately due and owing from Advanced Remodeling. As stated in the previous order, however, it is unclear whether payment will be forthcoming, as Advanced Remodeling was uninsured at the time of the accident and its owner made no effort to participate in this case. Mr. Davenport may apply to the Uninsured Employers Fund again for past-due TTD benefits as outlined within this order. Therefore, Mr. Davenport is awarded a judgment in the amount of $2,857.14 for past due TTDs against Advanced Remodeling and Floor Covering LLC, for which execution may issue as necessary. 2 IT IS SO ORDERED. dge Kenneth M. S i er Court of Workers' Compensat on Claims APPENDIX 1. Affidavit 2. Dr. Nesbitt's letter 3. Dr. Nesbitt's August 16, 2016 medical record 4. Request for Expedited Hearing (On-the-Record Determination) 5. Karen Pinkard's, RN, BSN November 30, 2016 letter CERTIFICATE OF SERVICE I certify that a true and correct copy of the Order was sent to the following recipients by the following methods of service on this the 16th day ofF ebruary, 20 17. Name Certified Via Via Service sent to: Mail Fax Email Ted Davenport, X Teddaven:gort33@gmail.com Self-Represented Employee Advanced Remodeling/ X X Advancedremodel20 15@gmail.com; Aaron Waldrum, 1619 Hill Street Self-Represented White Bluff, TN 37187 Employer P~u~:::;Court wc.courtclerk@tn.gov 3