Mays, Timothy v. Matthew Pearson, d/b/a Handyman Construction ( 2019 )

FILED
Jul 08, 2019
07:15 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
TIMOTHY MAYS, ) Docket No.: 2018-02-0659
Employee, )
v. ) State File No.: 93196-2018
)
MATTHEW PIERSON d/b/a ) Judge Brian K. Addington
HANDYMAN CONSTRUCTION, )
Employer. )
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
Timothy Mays filed a second Request for Expedited Hearing for his September
12, 2018 work injury. The Court reviewed the file and found it needed no additional
information to determine whether Mr. Mays is likely to prevail at a hearing on the
merits.' The case came before the Court on July 2, 2019, to decide whether Mr. Mays is
entitled to medical and temporary disability benefits. Because the medical evidence
supports his claim, the Court grants the requested relief.
Claim History
Mr. Mays performed general carpentry work for Handyman Construction. He cut
his left index and middle fingers on a table saw at work on September 12, 2018. Mr.
Mays received emergency treatment and was ordered to follow up with an orthopedist.
He could not afford one, so he returned to the emergency room on September 28. The
emergency physician determined the wounds were healing and referred Mr. Mays to Dr.
Ashraf Youssef.
When he saw Dr. Youssef, they discussed various treatment options, and Mr.
Mays decided to proceed without surgery. On May 8, 2019, Dr. Youssef placed Mr.
Mays off work from September 12, 2018, through July 16, 2019.
' The Court sent a docketing notice giving the parties ten business days to file objections and/or a brief.
Handyman Construction did not respond.
Concerning Mr. Mays’s work, Handyman Construction paid him by cash. The
parties dispute the total amount Mr. Mays earned, but both acknowledged he earned
$10.00 per hour.
According to the Expedited Request for Investigation Report, Handyman
Construction did not have insurance; the injury occurred after July 1, 2015; and Mr. Mays
resided in Tennessee at the time of accident. Further, Handyman Construction controlled
the work, possessed the right of termination, provided the tools and equipment, and
scheduled the working hours. Mr. Mays contacted an ombudsman with the Bureau on
October 29, 2018, and discussed his claim for benefits and Handyman Construction’s
lack of insurance.
Mr. Mays contended he is entitled to medical and temporary disability benefits.
He is seeking payment of his treatment with Dr. Youssef in the amount of $1,562.82, as
well as temporary total disability benefits from September 12, 2018, through July 16,
2019.
Findings of Fact and Conclusions of Law
At an Expedited Hearing, Mr. Mays must come forward with sufficient evidence
from which this Court might determine that he is likely to prevail at a hearing on the
merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Mr. Mays’s affidavit was uncontroverted that his alleged injury arose primarily out
of and in the course and scope of his employment, as required by Tenn. Code Ann. § 50-
6-102(14) (2018). The Court holds he is likely to prevail at a hearing on the merits in
proving his injury arose primarily out of and in the course and scope of his employment.
Mr. Mays is entitled to temporary total disability benefits if his work injury
temporarily disabled him from working. Tenn. Code Ann. § 50-6-207. Mr. Mays
presented uncontroverted evidence that Dr. Youssef took him off work from September
12, 2018, through July 16, 2019 due to his work injuries. The Court finds it reasonable to
set Mr. Mays’s average weekly wage at $400.00 with a corresponding compensation rate
of $266.67. The Court holds he is entitled to temporary total disability benefits totaling
$11,695.41.
Mr. Mays presented unrefuted evidence of Dr. Youssef’s charges totaling
$1,562.82. The Court holds Handyman Construction shall pay these medical bills.
* This Court issued an Expedited Hearing Order on April 26, 2019, awarding Mr. Mays medical treatment
with Dr. Youssef.
Finally, concerning the payment of benefits, Handyman Construction must
provide medical benefits and temporary total disability benefits as ordered. However,
since it did not have workers’ compensation insurance at the time of the injury, the
Uninsured Employers Fund has discretion to pay limited medical expenses if certain
criteria are met. (See attached Benefits Request Form.) Mr. Mays must establish,
through his testimony, medical records, and the Bureau’s Compliance report, that he
proved or is likely to prove that he: 1) worked for an uninsured employer; 2) suffered an
injury arising primarily in the course and scope of employment on or after July 1, 2015;
3) was a Tennessee resident on the date of injury; 4) provided notice to the Bureau of the
injury and the employer’s lack of coverage within sixty days of the injury; and, 5)
secured a judgment for workers’ compensation benefits against Handyman Construction
for the injury. Tenn. Code Ann. § 50-6-801(d)(1)-(5).
The Court finds that Mr. Mays worked for an uninsured employer, Handyman
Construction, and he is likely to prevail at a hearing on the merits that he suffered an
injury arising primarily from employment on September 12, 2018. He was a Tennessee
resident on that date, and he provided notice to the Bureau within sixty days of his injury
and Handyman Construction’s lack of insurance. This order serves as a judgment for
benefits. The Court holds Mr. Mays satisfied all of the requirements of section 50-6-
801(d).
IT IS, THEREFORE, ORDERED as follows:
1. Handyman Construction shall pay Dr. Youssef for Mr. Mays’s treatment totaling
$1,562.82. It shall also provide continuing treatment with Dr. Yousef.
2. Handyman Construction shall pay Mr. Mays $11,695.41 in temporary total
disability benefits.
3. This case is set for a Scheduling Hearing on August 27, 2019, at 10:30 a.m. (ET).
The parties must call toll-free at 855-543-5044 to participate in the Hearing.
Failure to call may result in a determination of the issues without your
participation.
4. Unless an 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 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 confirmation within seven
business days may result in a penalty assessment for non-compliance. For
questions regarding compliance, contact the Workers’ Compensation Compliance
Unit via email at WCCompliance.Program@tn.gov.
3
ENTERED July 8, 2019.
/s/ Brian K. Addington
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Exhibits/Technical Record
Petition for Benefit Determination
Mr. Mays’s Affidavit
Request for Expedited Hearing
Dispute Certification Notice with attachments
Medical Records and Bills from Holston Valley Medical Center
Medical Records and Bills from Holston Medical Group-Dr. Youssef
Expedited Request for Investigation Report
Mary Perry’s Affidavit
Po St GY Yr = be ke
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on July 8, 2019.
Name Certified | Via | Via _ | Service sent to:
Mail Fax | Email
Timothy Mays, xX 1017 W. Stone Drive, Apt. 323
Employee Kingsport, TN 37660
Matthew Pearson, x 1794 Big Moccasin Dr.
Employer Nicklesville, VA 24271
Amanda Terry, amanda.terry(@tn.gov
LaShawn Pender x lashawn.pender@tn.gov
Compliance
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SInny MAum—
PENNY SH&.UM, COURT CLERK
we.courtcleiM@tn.gov
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Filed Date Stamp Here
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work
wc.ombudsman@tn.gov
1-800-332-2667
REQUEST FOR BENEFITS FROM THE UNINSURED EMPLOYERS FUND
Eligible employees may use this form to request benefits from the Uninsured Employers Fund (UEF) if
they are injured while working for an employer that failed to provide:
1. Workers’ compensation insurance as required by the TN Workers’ Compensation Law; and,
2. Medical and/or disability benefits as required by the TN Workers’ Compensation Law.
This form MUST be completed and sent via certified mail to the following address:
Tennessee Bureau of Workers’ Compensation
ATTN: UEF Benefit Manager
Uninsured Employers Fund
220 French Landing Drive, Suite 1B
Nashville, TN 37243-1002.
This form MUST be sent within sixty (60) calendar days after the claim is over and MUST include:
1. Acourt order stating your employer owes you benefits and that you may request UEF benefits;
2. Acompleted Internal Revenue Service (IRS) Form, W-9 Request for Taxpayer Information and
Certification available at www.irs.gov; and
3. Acompleted Bureau of Workers’ Compensation Form C31 Medical Waiver and Consent available
on the “Forms” link at www.tn.gov/workerscomp.
I certify that I believe I am eligible for benefits from the UEF; that my employer has not paid all or part of
the benefits Iam due; and my employer has not complied with an order issued by the Court of Workers’
Compensation Claims.
I, , request benefits from the Uninsured Employers Fund.
(Print Your Name)
Signature Date
Tennessee Law allows the State of Tennessee to recover payments made by the UEF for temporary
disability benefits or medical benefits. An agreement between you and your employer for payment of
benefits must be pre-approved by the UEF before being approved by a workers’ compensation judge.
LB-3284 (NEW 4/19) RDA 10183
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: “Expedited Hearing 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.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
L] Temporary disability benefits
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
Address:
Party’s Phone: Email:
Attorney's Name: BPR#:
Attorney’s Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I,
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of , 20
, certify that | have forwarded a true and exact copy of this
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam employed by:
My employer’s address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
ssl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ __ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082