Conner, Michael v. J & J Construction

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
MICHAEL CONNER, ) Docket No. 2015-06-1415
Employee, )
v. )
) State File No. 101766-2015
)
J&J CONSTRUCTION, )
Employer. ) Judge Joshua Davis Baker
COMPENSATION HEARING ORDER
This matter came before the Court for a compensation hearing on December 20,
2017. The central legal issue is whether Mr. Conner is entitled to workers’ compensation
benefits and whether he may seek benefits from the Uninsured Employers Fund (UEF).
J&J Construction did not attend the hearing. For the reasons below, the Court holds J&J
Construction must pay Mr. Conner temporary disability, and it further holds he is
ineligible to recover benefits from the UEF.
Claim History
After his workday on July 15, 2015, Mr. Conner sat on a cooler in the bed of his
supervisor’s truck to ride across J&J Construction’s worksite. When the truck
accelerated suddenly, he toppled to the ground and broke his nose. Mr. Conner’s
girlfriend drove him to the emergency room at Southern Hills Medical Center.
Mr. Conner incurred $13,547.00 in medical expenses from emergency treatment at
Southern Hills and from subsequent treatment by Dr. Michael Salazar. At Southern Hills,
Dr. Richard W. Rieck diagnosed “bilateral nasal fractures” and “remote medial blowout
fracture of the left orbit.” Dr. Salazar next treated Mr. Conner, taking him off work for
three to four weeks to recover.
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Once Mr. Conner recovered, J&J Construction employed him for approximately
two weeks before suddenly cutting his pay and terminating his employment. J&J
Construction did not have workers’ compensation coverage.
Mr. Conner testified that Andrew Jackson, the truck-driver and owner’s son,
offered to provide him medical care through his truck’s insurance policy. The truck’s
insurance carrier refused to cover Mr. Conner’s medical treatment, since it was a work-
related injury.
J&J Construction’s owner hired Mr. Conner six to eight months before his injury
and paid him cash. Mr. Conner’s affidavit indicated he earned $900 per week on
average.
Findings of Fact and Conclusions of Law
In order to prevail at this compensation hearing, Mr. Conner “must establish by a
preponderance of the evidence that [he is] entitled to the requested benefits.” Willis v. All
Staff, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn.
Code Ann. § 50-6-239(c)(6) (2017) (“[T]he employee shall bear the burden of proving
each and every element of the claim by a preponderance of the evidence.”). For the
reasons set forth below, the Court finds he carried his burden of proof in part, and it holds
that J&J Construction must pay Mr. Conner temporary disability benefits and reimburse
him for his out-of-pocket medical expenses. The Court denies Mr. Conner’s claim for
permanent disability benefits for lack of proof. The Court also holds that he is not
eligible for recovery from the UEF.
Workers’ Compensation Law defines an injury as “an injury by accident . . .
arising primarily out of and in the course and scope of employment, that causes . . . the
need for medical treatment.” Tenn. Code Ann. § 50-6-102(14). An injury is “accidental”
if caused by a specific incident. Id. An injury occurs in the course of employment if ‘it
takes place within the period of the employment, at a place where the employee
reasonably may be, and while the employee is fulfilling work duties or engaged in doing
something incidental thereto.’” Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 534
(Tenn. 2006).
Here, Mr. Conner credibly testified he suffered a broken nose after falling from his
supervisor’s truck on a construction site while employed by J&J Construction. The
medical records corroborated his testimony. J&J Construction presented no contrary
proof. Based on his testimony, the Court holds he suffered a workplace injury.
Mr. Conner also testified credibly about his medical treatment and expenses and
presented bills to demonstrate the costs. The Court holds J&J Construction must
reimburse Mr. Conner $13,547.00 in medical expenses.
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Having found compensability, the Court considers Mr. Conner’s entitlement to
temporary total disability and permanent disability benefits. To establish entitlement to
temporary disability benefits, Mr. Conner must show a compensable injury disabled him
from working, a causal connection exists between his injury and inability to work, and
the duration of his disability. Jones v. Crencor, 2015 TN Wrk. Comp. App. Bd. LEXIS
48, at *7 (Dec. 11, 2015). Mr. Conner testified credibly that Dr. Salazar restricted him
from working for three to four weeks because of his injury. Thus, the Court finds he was
disabled from working for three and one-half weeks following his injury.
Compensation for temporary total disability is sixty-six and two-thirds percent of
Mr. Conner’s average weekly wages. See id. at 50-6-207(1)(A). Mr. Conner’s affidavit
indicated he earned an average weekly pay of $900.00. The Court finds his average
weekly wage was $900.00, making his compensation rate $600.00 per week. The Court
holds Mr. Conner is entitled to three and one-half weeks of temporary total disability, or
$2,100.00.
To prove entitlement to permanent disability benefits, Mr. Conner must prove he
suffered permanent disability from his injury. See Tenn. Code Ann § 50-6-207(3)(A).
The Court holds Mr. Conner provided insufficient evidence to establish by a
preponderance of the evidence that he suffered permanent impairment as a result of his
work injury.
The Bureau has discretion to pay limited temporary disability and medical benefits
to an injured employee who suffered a workplace injury and who meets the following
criteria:
1. The employee worked for an employer who failed to carry workers’
compensation insurance;
2. The employee suffered an injury arising primarily out of and in the course and
scope of employment after July 1, 2015;
3. The employee was a Tennessee resident on the date of 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.
Id. at 50-6-801(d)(1)-(4).
Here, Mr. Conner did not provide notice to the Bureau within sixty days of his
injury. His testimony indicated he was aware J&J Construction did not have workers’
compensation insurance, as he attempted to obtain treatment from the truck’s motor
vehicle insurance policy instead. Despite knowing his employer was uninsured, he did
not offer evidence that he notified the Bureau within sixty days. Therefore, the Court
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holds that he is ineligible for benefits from the UEF.
IT IS, THEREFORE, ORDERED as follows:
1. J&J Construction shall pay Mr. Conner $13,547.00 for reimbursement of medical
expenses.
2. J&J Construction shall pay Mr. Conner $2,100.00 in temporary total disability
benefits.
3. The Court denies Mr. Conner’s claim for benefits from the UEF.
4. The Court denies Mr. Conner’s claim for permanent disability benefits.
5. The Court assesses the $150.00 filing fee to J&J Construction pursuant to
Tennessee Compilation Rules and Regulations 0800-02-21-.07 (2017), for which
execution shall issue as necessary.
6. Absent an appeal of this order by either party, the order shall become final thirty
days after issuance.
ENTERED ON JANUARY 22, 2018.
_____________________________________
JUDGE JOSHUA DAVIS BAKER
Court of Workers’ Compensation Claims
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APPENDIX
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice filed December 15, 2017
3. Request for Scheduling Hearing
4. Order Granting Motion to Withdraw
5. Employer’s Amended Motion to Withdraw
6. Employer’s Motion to Withdraw
7. Employee’s Motion to Set for Hearing
8. Employer’s Notice of Appearance
9. Employer’s Motion for Continuance of Expedited Hearing
10. Request for Expedited Hearing
11. Order on Show Cause Hearing
12. Show Cause Order
13. Dispute Certification Notice filed February 26, 2016
Exhibits:
1. Employee’s Affidavit and Medical Records
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Order was sent to the
following recipients by the following methods of service on January ___,
19th 2018.
Name Certified Via Via Service sent to:
Mail Fax Email
J.P. Barfield, X jpbarfield@jsblaw.com
Employee’s
Attorney
David Jackson, X X P.O. Box 123
Employer Coalmont, IN 47485
Andrew.dl.jackson@gmail.com
_____________________________________
PENNY SHRUM, CLERK
Court of Workers' Compensation Claims
WC.CourtClerk@tn.gov
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