Hibbitts, Greg v. Kim Royal dba Royal Guttering

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
GREG HIBBITTS, ) Docket No.: 2020-020384
Employee, )
v. ) State File No.: 48762-2020
KIM ROYAL DBA )
ROYAL GUTTERING ) Judge: Brian Kk. Addington
Employer. )
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
This case came before the Court on Mr. Hibbitts’s second Request for an Expedited
Hearing on the Record.! The issue is whether he is likely to prove at trial that he is entitled
to medical and temporary benefits for his alleged July 15, 2020 injuries. Royal Guttering
did not respond to his request. Nevertheless, for the reasons below, the Court denies the
requested benefits.
History of Claim
Mr. Hibbitts worked as a laborer for Royal, who paid him every Friday in cash. He
worked at $10.00 per hour for forty to sixty hours per week depending on the weather.
Royal provided the tools and directed the work. Both parties were free to terminate the
employment at any time.
Mr. Hibbitts was on the roof of a worksite on July 15, 2020, instructing a co-worker
how to clean a gutter, when he fell. After the fall, a co-worker called an ambulance, and
Mr. Hibbitts treated at a local hospital. Royal did not have workers’ compensation
insurance coverage at the time. Mr. Hibbitts notified the Bureau about the injury on July
30, 2020. An investigator with the Bureau filed an Expedited Request for Investigation
Report, which asserted that Royal employed Mr. Hibbitts and confirmed Royal did not
have workers’ compensation insurance on the date he was injured.
' Mr. Hibbitts filed a Request for Expedited Hearing determination on the record on September 10, 2020.
This Court issued an Order denying a record determination without additional documentation. He
responded by filing the present Request for Expedited Hearing.
1
According to the Dispute Certification Notice, Mr. Hibbitts requested medical and
temporary disability benefits. He did not support his request with medical records, medical
opinions regarding his mjury or work status, or medical bills. Although Royal asserted
defenses according to the DCN, it filed no response to the present request.
Findings of Fact and Conclusions of Law
Mr. Hibbitts must show he is likely to prevail at a hearing on the merits. See Tenn.
Code Ann. § 50-6-239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN
Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). To do so, he must present
evidence that he suffered an injury “arising primarily out of and in the course and scope of
employment, that causes . . . disablement or the need for medical treatment[.]” Tenn. Code
Ann. § 50-6-102(14).
Mr. Hibbitts provided uncontroverted evidence that he fell and was taken to a
hospital. However, he failed to provide any medical records from the hospital documenting
the nature of the injury, his treatment, or the need for continued medical treatment. Further,
he offered no evidence regarding any periods of temporary disability. For these reasons,
the Court cannot conclude that he would be successful at trial in proving his entitlement to
medical and temporary disability benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Hibbitts’s request for benefits is denied at this time.
2. The parties must contact Traci Haynes, staff attorney, no later than January 15,
2021, and provide availability for a status conference. Ms. Haynes may be reached
at traci.haynes@tn.gov or 423-854-5163.
ENTERED January 4, 2021.
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
Exhibits:
APPENDIX
1. Affidavits of Mr. Hibbitts (9/10/2020 and 11/18/2020)
2. Expedited Request for Investigation Report
3. Employee’s Position Statement (8/20/2020)
Technical Record:
we Wn
Petition for Benefit Determination
Dispute Certification Notice
Requests for Expedited Hearing (9/10/2020 and 11/18/2020)
Order Denying on the Record Determination
Docketing Notice
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on January 4, 2020.
Name Certified | Fax | Email | Service sent to:
Mail
Phillip Strang, x phillip@foxandfarmer.com
Employee’s Attorney
Kim Royal, x x kimroyal13 @gmail.com
Employer 512 Fernwood Dr.
Kingsport, TN 37663
“yn -
PENNY SHRUM, COURT CLERK
we.courtclerk@tn. gov
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
conceming 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/
we.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
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):
D Expedited Hearing Order filed on UO) Motion Order filed on
O Compensation Order filed on 0 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 *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: Docket No.: Date of !nj.:
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 | 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