Beck, Brian v. Rickie Neal, d/b/a Neal's Remodeling

FILED
Jan 25, 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
BRIAN BECK, ) Docket Number: 2018-02-0470
Employee, )
v. )
RICKIE NEAL, d/b/a NEAL'S ) State File Number: 64580-2018
REMODELING, )
Employer. )
) Judge Brian K. Addington
EXPEDITED HEARING ORDER
This case came before the Court on January 22, 2019, on Mr. Beck's request for
medical and temporary total disability benefits for an injury he sustained due to a fall
from a ladder. Mr. Neal countered that Mr. Beck was not an employee and did not fall
but jumped to the ground. For the reasons below, the Court holds Mr. Beck is likely to
succeed at a hearing on the merits in proving he was an employee and that he fell from
the ladder, and he is entitled to medical and temporary disability benefits.
History of Claim
Mr. Beck worked one month for Mr. Neal, an uninsured employer, remodeling
homes. Mr. Neal intended to hire Mr. Beck as an independent contractor but paid him
twelve dollars per hour, controlled the conduct and time of Mr. Beck's work, and
provided tools for the job. Mr. Beck testified he worked forty hours per week.
While working on a remodeling job on August 14,2018, in Gray, Tennessee, Mr.
Beck disturbed a wasp nest and fell twelve feet from a ladder to the ground. Mr. Neal
admitted he did not see Mr. Beck fall and assumed he jumped from the ladder. EMS
transported Mr. Beck to the emergency room where Dr. Michael Sutherland diagnosed a
broken heel and discharged him with a walking boot and medication, and referred him to
Appalachian Orthopedics.
The next day Mr. Beck saw Dr. Reagan Parr's physician assistant, who confirmed
the broken heel and found significant swelling. He noted that Mr. Beck should observe
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strict non-weight bearing and return to Dr. Parr. During a follow-up examination, Dr.
Parr indicated the fracture did not need surgical repair and continued Mr. Beck's non-
weight bearing restrictions. On October 5, Dr. Parr modified the restrictions to no
climbing, no standing over ten minutes per hour, limited walking and working restricted
to level ground. Dr. Parr set a return appointment, but the parties did not provide medical
records beyond the October 5 appointment.
Mr. Beck did not return to work for Mr. Neal. He obtained a job in early January
20 19 earning nine dollars per hour and working thirty hours per week.
Mr. Beck argued he was entitled to payment of past and ongoing medical
treatment with the emergency providers and Dr. Parr. He requested temporary disability
benefits from the date of the injury until January 2019 when he returned to work. Mr.
Neal argued that Mr. Beck was not entitled to the requested benefits because he was not
an employee and he jumped from the ladder.
Findings of Fact and Conclusions of Law
Mr. Beck must present sufficient evidence that he is likely to prevail at a hearing
on the merits. Tenn. Code Ann.§ 50-6-239(d)(l) (2018).
First, regarding whether Mr. Beck was an employee or independent contractor, the
evidence supports Mr. Beck's position that he was an employee. The factors a court must
consider in determining whether a person is an employee or independent contractor are in
Tennessee Code Annotated section 50-6-1 02( 12)(D)(i). The applicable statutory factors
are that Mr. Neal directed the method of payment, controlled the schedule and the work,
and provided the tools. The Court holds that Mr. Beck is likely to succeed in a hearing
on the merits in proving he was Mr. Neal's employee.
Second, Mr. Beck provided sufficient evidence to show his injury occurred in the
course and scope of his work. The fact he fell and injured his heel at work was obvious
and confirmed by the medical records. Mr. Neal did not see the incident but asserted that
Mr. Beck jumped from the ladder. The Court finds Mr. Beck provided sufficient
evidence that he fell attempting to avoid wasps.
Third, because Mr. Neal did not provide medical benefits, Mr. Beck sought
treatment at the emergency room and with Dr. Parr. Because of Mr. Neal's failure to
provide medical benefits, Mr. Beck was reasonable in seeking his own treatment. See
Hackney v. Integrity Staffing Solutions, 2016 TN Wrk. Comp. App. Bd. LEXIS 29, at *8-
9 (July 22, 2016). Because Dr. Parr has already provided substantial care to Mr. Beck,
the Court designates him the authorized physician and orders Mr. Neal to pay for any
reasonable and necessary medical expenses incurred due to the injury.
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Finally, Mr. Beck requested temporary disability benefits for his lost time. The
Court finds he credibly testified that he earned twelve dollars per hour working forty
hours per week for Mr. Neal. Thus, he established an average weekly wage of $480
yielding a compensation rate of $320.
For temporary total disability benefits, Mr. Beck must show he is likely to prove:
(1) a disability from working as the result of a compensable injury; (2) a causal
connection between the injury and the inability to work; and (3) the duration of the period
of disability. Shepherd v. Haren Const. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS
15, at *13 (Mar. 30, 2016). The medical records indicate Mr. Beck could not work from
the injury date until October 5, or seven weeks and three days. At the weekly
compensation rate of $320.00, Mr. Beck is entitled to temporary total disability benefits
of$2,377.13. The Court holds Mr. Beck is to likely prove entitlement to those benefits at
trial.
However, concerning temporary partial disability benefits, Mr. Beck did not
produce evidence of an inability to work beyond October 5 or specific dates of his return
to work. He might be entitled to further temporary benefits on a showing that he was
unable to work, or earn the same wage, until a physician places him at maximum medical
improvement.
IT IS, THEREFORE, ORDERED as follows:
1. The Court designates Dr. Parr as Mr. Beck's authorized physician. Mr. Neal shall
pay all reasonable and necessary medical treatment provided or recommended by
Dr. Parr.
2. Mr. Neal shall pay temporary total disability benefits totaling $2,377.13. Mr.
Beck's request for temporary partial disability benefits is denied at this time.
3. This matter is set for a Scheduling Hearing on March 26, 2019, at 2:00 p.m.
(EDT). You must call toll-free at 855-543-5044 to participate in the Hearing.
Failure to call in may result in a determination of the issues without your
further participation.
4. Unless 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 Insurer or Self-Insured Employer must submit confirmation of compliance
with this Order to the Bureau by email to W ompliance.Pro12.ram@tn.go no
later than the seventh business day after entry of this Order. Failure to submit the
necessary confirmation within the period of compliance may result in a penalty
assessment for non-compliance. For questions regarding compliance, please
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contact the Workers' Compensation Compliance Unit v1a email at
W ' rnpliauce.Program@tn.go
ENTERED this the 25th day of January, 2019.
IS/ Bt·ian K. Addington
BRIAN K. ADDINGTON, JUDGE
Court of Workers' Compensation Claims
APPENDIX
Exhibits:
1. Mr. Beck's Affidavit
2. Medical Records
3. Expedited Request for Investigation Report
Technical Record:
1. PBD
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Continuance Motion
5. Mr. Beck's Position Statement
6. Mr. Beck's Exhibit List
7. Mr. Beck's Witness List
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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 January 24,2014.
Name Certified Fax Email Service sent to:
Mail
Daniel Bieger, X dan@biegerlaw .com
Employee's Attorney
Rickie Neal, X X rick2420 I @).outl ook. com
Employer 1608 Kentucky Avenue
Bristol, TN 37620
~ JJv~ -
PEN~UM,COURTCLERK
wc.courtcie rk(ci)tn .gov
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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.
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-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, I 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 All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am 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. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month 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
I 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
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082