Bielich, Sam v. Jerry Russell, d/b/a Russell Remodeling , 2018 TN WC 72 ( 2018 )

FILED
May 22, 2018
02:23 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KNOXVILLE
SAM BIELICH, ) Docket No.: 2017-03-0990
Employee, )
v. ) State File No.: 65243-2017
JERRY RUSSELL, d/b/a RUSSELL )
REMODELING, ) Judge Lisa A. Lowe
Employer. )
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
(Decision on the Record)
This matter came before the undersigned Workers' Compensation Judge on Mr.
Bielich's Request for Expedited Hearing seeking medical benefits. Jerry Russell, d/b/a
Russell Remodeling, did not file a response or request an evidentiary hearing. The
central legal issue is whether Mr. Bielich is likely to prevail at a hearing on the merits in
proving that his injury arose primarily out of and in the course and scope of his
employment. For the reasons below, the Court holds Mr. Bielich established he is likely
to prevail and is entitled to the requested medical benefits.
History of Claim
A review of the written materials revealed the following facts. Russell
Remodeling employed Mr. Bielich as a laborer in its general contracting, restoration, and
repair business. Mr. Bielich's work activities included roofing, drywall, painting and
carpentry. Russell Remodeling paid him $13.00 per hour and issued paychecks weekly.
On August 11, 2017, Mr. Russell arrived at customer Ken Smith's home to work
on the roof and encountered rain after working for a while. He came down from the roof
and was gathering his tools when he fell through a rotted deck and injured his left knee,
leg, and foot. Mr. Bielich's co-worker, T.J. Wilkerson, and Mr. Smith witnessed the
injury. Mr. Smith transported Mr. Bielich to Roane Medical Center, where he received
treatment. The medical provider instructed him to use a knee immobilizer and follow up
with his primary care physician and/or orthopedic specialist within the next week. Mr.
1
Bielich submitted the following medical bills incurred for treatment of the work-related
injury: Vista Radiology: $45.00; Emergency Coverage Corporation: $273.88; and Roane
Medical Center: $325.94. Russell Remodeling failed to provide Mr. Bielich with a panel
of physicians for follow-up treatment and to pay the submitted medical expenses.
After completing an Expedited Request for Investigation Report, Compliance
Officer Kimberly Stoner found the following: Russell Remodeling did not have workers'
compensation coverage at the time of the injury; Mr. Bielich suffered an injury primarily
arising primarily out of and in the course and scope of his employment after July 1, 2015;
Mr. Bielich was a Tennessee resident on the date of injury; and Mr. Bielich provided
notice of his injury and Russell Remodeling's lack of workers' compensation insurance
to the Bureau within sixty days of the injury. Russell Remodeling did not file a response
to rebut these findings. Therefore, the Court adopts the findings of Compliance Officer
Stoner's Expedited Request for Investigation Report.
Findings of Fact and Conclusions of Law
The following legal principles govern this case. Because this is an Expedited
Hearing, Mr. Bielich need not prove every element of his claim by a preponderance of
the evidence in order to obtain relief. McCord v. Advantage Human Resourcing, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Instead, he must come
forward with sufficient evidence from which this Court might determine he is likely to
prevail at a hearing on the merits. !d.; Tenn. Code Ann. § 50-6-239(d)(l).
Tennessee Code Annotated section 50-6-204(a)(l)(A) provides that "[t]he
employer or the employer's agent shall furnish, free of charge to the employee, such
medical . . . treatment . . . made reasonably necessary by accident as defined in this
chapter." Further, when an employee sustains a work-related injury, the employer shall
designate a group of three physicians from which the employee shall select a treating
physician. See Tenn. Code Ann. 50-6-204(3)(A)(i).
No one disputes that Mr. Beilich fell through Mr. Smith's deck. Mr. Russell
acknowledged the incident when interviewed by the Compliance Specialist, and both Mr.
Wilkerson and Mr. Smith confirmed the incident. Mr. Smith also confirmed that he took
Mr. Beilich to Roane Medical Center for treatment immediately afterward. The Court
holds Mr. Beilich sustained a specific injury arising primarily out of and in the course and
scope of his employment, and Russell Remodeling shall be responsible for past and
ongoing medical treatment. Russell Remodeling shall directly pay Vista Radiology,
Emergency Coverage Corporation, and Roane Medical Center for treatment rendered to
Mr. Beilich for the work injury. Additionally, Russell Remodeling shall provide Mr.
Beilich with a panel of orthopedic physicians for follow-up treatment.
2
Payment of Benefits
Although this Court holds Russell Remodeling must provide Mr. Beilich with past
and ongoing medical benefits, payment might not occur, as Russell Remodeling did not
have workers' compensation insurance at the time of the accident. Under Tennessee
Code Annotated section 50-6-802(e)(l), however, the Bureau has discretion to pay
limited temporary disability and medical benefits to employees who have established
medical causation of their injury and meet the following criteria:
( 1) The employee worked for an employer who failed to carry workers'
compensation insurance;
(2) The employee suffered an injury primarily arising in the course and
scope of employment after July 1, 2015;
(3) The employee was a Tennessee resident on the date of the injury; and
(4) The employee provided notice to the Bureau of the injury and the
employer's failure to provide workers' compensation insurance no more
than sixty days after the injury occurred.
Tenn. Code Ann.§ 50-6-SOl(d)(l)-(4).
The Court adopted the findings contained in the Bureau's Investigation Report,
admitted into evidence without objection and finds:
( 1) Russell Remodeling failed to carry workers' compensation insurance;
(2) Mr. Bielich suffered an injury arising primarily out of and in the course and scope
of employment after July 1, 2015;
(3) Mr. Bielich was a Tennessee resident on August 11,2017, the date of the injury;
(4) Mr. Bielich provided the Bureau notice of the injury and of Russell Remodeling's
failure to provide workers' compensation within sixty days after the injury
occurred; and,
(5) Mr. Bielich is entitled to past and ongoing medical benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Jerry Russell, d/b/a Russell Remodeling, shall pay for reasonable and necessary
medical care for Mr. Bielich's injuries, including services already received from
Vista Radiology, Emergency Coverage Corporation, and Roane Medical Center.
Either Mr. Bielich or the medical provider shall furnish medical bills to Jerry
Russell, d/b/a Russell Remodeling. Jerry Russell, d/b/a Russell Remodeling, shall
also provide Mr. Bielich with a panel of orthopedic physicians for ongoing
reasonable, necessary, and related medical treatment as required by Tennessee
Code Annotated section 50-6-204.
3
2. Mr. Bielich is eligible to receive medical benefits from the Uninsured Employer's
Fund under Tennessee Code Annotated section 50-6-801, et seq. The clerk shall
forward a copy of this order to the Administrator for consideration of whether to
provide medical treatment.
3. This matter is set for a Scheduling Hearing on August 13, 2017, at 9:30 a.m.
Eastern Time. The parties must call (865) 594-0109 or (toll-free) (855) 383-0003
to participate in the Scheduling Hearing. Failure to appear by telephone may
result in a determination of the issues without your further participation.
ENTERED May 22, 2018.
LISA A. LOWE, JUDGE
Court of Workers' Compensation Claims
APPENDIX
The Court reviewed the entire case file and marked the following documents as
exhibits for ease of reference:
1. Petition for Benefit Determination,
2. Dispute Certification Notice,
3. Show Cause Order,
4. Order Granting Extension,
5. Request for Expedited Hearing,
6. Affidavit of Sam Bielich,
7. Expedited Request for Investigation Report,
8. Photo Identification of Mr. Bielich,
9. Payment to Mr. Bielich,
10. Photographs,
11. Medical Record of Roan Medical Center,
12. Medical Expense of Vista Radiology, and
13. Medial Expense of Alcoa Billing Center.
4
CERTIFICATE OF SERVICE
I 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 May 22, 2018.
Name Certified Via Via Service sent to:
Mail Fax Email
Jonathan W. Doolan, X jonathan@collinsdoolan.com
Employee's Attorney
Jerry Russell, X X Jerry Russell
Self-Represented 1350 Sunnyside Road
Employer Philadelphia, TN 37846
Russellpainting81 ~gmail.com
LaShawn Pender, X Lashawn ..Qend er@tn. gov
UEF
Courtesy Copy Only
5