Herrera, Jesus v. Pedro Luna and Turcios Masonry

TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
JESUS HERRERA, ) Docket Nos.: 2019-05-0765
Employee, ) 2019-05-0764
V. )
)
PEDRO LUNA, ) State File Nos. 49239-2019
And ) 47819-2019
TURCIOS MASONRY, )
Employers, )
And )
)
BUSINESSFIRST INS. CO., ) Judge Dale Tipps
Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
This case came before the Court on February 26, 2020, for an Expedited Hearing
on whether Mr. Herrera is entitled to temporary disability benefits.' For the reasons
below, the Court finds Mr. Herrera is unlikely to succeed at a hearing on the merits and
holds he is not entitled to benefits at this time.
History of Claim
On May 27, 2019, Mr. Herrera was working for Mr. Luna, a subcontractor for
Turcios Masonry, when he fell from a cement mixer. He went to the emergency room,
where records show the doctors diagnosed a left-side rib fracture and other contusions.
They discharged him with a Lortab prescription and an incentive spirometer. Because x-
rays also disclosed a mass in Mr. Herrera’s left lung, the doctors told him to follow up
with his own physicians for additional diagnostic studies, including a probable biopsy.
"Mr. Herrera filed two Petitions for Benefit Determination, one against each employer, based on the same
injury. The Mediator also issued separate Dispute Certification Notices for both claims. Because these
claims involve the same alleged injury, the Court finds it appropriate to consolidate them to promote
judicial economy.
Mr. Herrera does not appear to have received additional treatment for his work
injury until after he filed his Petitions for Benefit Determination (PBD). Because Mr.
Luna’s workers’ compensation insurance had lapsed, the carrier for the general
contractor, Turcios Masonry, paid Mr. Herrera’s emergency room bills and provided a
panel of physicians, from which he selected Concentra Urgent Care.
Dr. Frank Thomas saw Mr. Herrera at Concentra on September 10, 2019. He
noted a healing left-side rib fracture and left lateral chest pain. Dr. Thomas also noted the
mass in in the left lung and strongly advised Mr. Herrera to keep his scheduled medical
appointment at Murfreesboro Medical Center. He stated that Mr. Herrera had reached
maximum medical improvement from his injury and released him from care.
At the hearing, Mr. Herrera testified that he received treatment for lung cancer and
tuberculosis over the next several months. He continues to have pain in his left side
whenever he lifts anything, so he has not been able to work since the accident. Even if he
had cancer or tuberculosis before the accident, he felt fine. Because he had no symptoms
until he fell, he believes his fall is the cause of his symptoms, so he is entitled to
temporary disability benefits.”
Turcios contended that Mr. Herrera is not entitled to temporary disability benefits
because he failed to present evidence of any medical restrictions that would have
prevented him from working.
Findings of Fact and Conclusions of Law
Mr. Herrera must provide sufficient evidence from which this Court might
determine 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 receive temporary total disability benefits, Mr. Herrera must establish that (1)
he became disabled from working due to a compensable injury; (2) a causal connection
between his injury and his inability to work; and (3) his period of disability. Jones v.
Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11,
2015).
Temporary partial disability benefits are available when the temporary disability is
not total. Specifically, TPD “refers to the time, if any, during which the injured
employee is able to resume some gainful employment but has not reached maximum
* Mr. Herrera also requested payment of some of his medical bills. However, because medical treatment
was not certified as an issue on the Dispute Certification Notices, the Court has no authority to address
that issue at this time. See Tenn. Code Ann. § 50-6-236(d)(3)(A).
2
recovery.” /d. An employee may receive TPD benefits when the treating physician
returns him to work with restrictions but the employer either (1) cannot return the
employee to work within those restrictions or (2) cannot provide restricted work that pays
the employee’s average weekly wage on the date of injury. /d. at *8.
Mr. Herrera presented no medical proof indicating that his physicians took him
completely off work or assigned restrictions because of this injury. Without evidence
that he was disabled or restricted from working, Mr. Herrera has not proven he is likely to
succeed on a claim for temporary disability benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Herrera’s request for temporary disability benefits is denied at this time.
2. This case is set for a Scheduling Hearing on May 12, 2020, at 9:00 a.m. You must
call toll-free at 855-874-0473 to participate. Failure to call might result in a
determination of the issues without your further participation. All conferences are
set using Central Time.
ENTERED MARCH 2, 2020.
(SSoeL ys
c
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Affidavit of Jesus Herrera
2. Choice of Physician form
3. Notice of Controversy
4. Medical records from Concentra and Williamson Medical Center
Technical record:
Petitions for Benefit Determination
Dispute Certification Notices
Request for Expedited Hearing
Employer’s Notice of Filing and Witness List
Employer’s Witness List
WR wWNS
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
March 2, 2020.
Name Certified | Fax Email | Service sent to:
Mail
Jesus Herrera xX 1009 Riviera Dr.
Murfreesboro, TN 37130
Pedro Luna xX 2714 Murfreesboro Pike
Lot 33
Antioch, TN 37013
Amy Brown, x amy @ petersonwhite.com
Employer’s Attorney
/) { /
/ Loyrey Pu, i
Penny Shrur/, (Clerk of Court
Court of Wovkers’ Compensation Claims
WC.CourtClerk @ th.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/
wce.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):
0 Expedited Hearing Order filed on O Motion Order filed on
0 Compensation Order filed on C1 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): fo 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 lof 2 RDA 11082
Employee Name: Docket No.: Date of Inj.:
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