Harper, Mario v. Flava House, LLC

FILED
Jan 22, 2021
02:09 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
MARIO HARPER, ) Docket No. 2019-08-0055
Employee, )
v. ) State File No. 3628-2019
FLAVA HOUSE, LLC, )
Uninsured Employer. ) Judge Amber E. Luttrell
COMPENSATION ORDER
The Court held a Compensation Hearing on January 6, 2021, on Mr. Harper’s
request for medical benefits and temporary disability benefits for burn injuries he sustained
working for Flava House, LLC. Flava House has not participated in this case and did not
appear for the Compensation Hearing. For the reasons below, the Court holds Mr. Harper
is entitled to the requested benefits.
Claim History
Mr. Harper, a Tennessee resident, worked as a grill cook for Flava House. He
testified he earned $13 per hour and worked fifty-two hours per week.
On July 22, 2018, Mr. Harper sustained burns when he reached for a pan on the
stove and a fire ignited, which caught his left arm and legs on fire. A coworker assisted
him and called the owner to report the accident. The owner returned and spoke to Mr.
Harper before the ambulance transported him to the hospital. Flava House terminated Mr.
Harper that day and did not pay worker’s compensation benefits.
Mr. Harper received emergency treatment, including surgery, at Regional One
Health Hospital. Dr. William Hickerson treated Mr. Harper for second degree-burns to his
left arm and both legs. Dr. Hickerson testified that he treated Mr. Harper’s left-arm burn
with a skin substitute and thought his leg wounds would heal on their own.
Mr. Harper stayed in the hospital several days and then underwent outpatient
treatment at the Wound Care Center through September 14, 2018. Dr. Hickerson testified
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that on that date, “everything was healed and he was discharged.” Dr. Hickerson stated he
would have restricted Mr. Harper from working due to his injuries from July 23 through
his September 14 discharge date. Further, Dr. Hickerson reviewed Regional One Health’s
bills and testified they represented reasonable, necessary, and customary charges for the
work injury.
At trial, Mr. Harper asserted that Flava House did not have workers’ compensation
insurance coverage on his injury date and offered proof to seek discretionary benefits from
the Bureau’s Uninsured Employers Fund.
Emily Bragg, Mr. Harper’s former attorney, testified regarding his request for
benefits from the Uninsured Employers Fund under Tennessee Code Annotated section 50-
6-801(d). Specifically, she testified concerning the timeframe of her efforts to determine
Flava House’s insurance coverage and when she provided notice to the Bureau as required
under section 50-6-801(d)(4).
Ms. Bragg stated she performed an insurance coverage verification search on Flava
House through the Bureau’s website on August 10, 2018, and the website showed Flava
House had workers’ compensation insurance. A few days later, she sent a letter of
representation to Flava House and was contacted by an attorney, who stated he represented
Flava House in this claim. She understood from the attorney that Flava House had workers’
compensation insurance for the claim.
Ms. Bragg testified she first learned Flava House might not have been insured on
January 15, 2019, when the attorney informed her that he was not going to represent Flava
House. She filed a Petition for Benefit Determination that day, and the Bureau assigned a
Compliance Specialist to initiate a coverage investigation on January 17.
The Bureau’s Compliance Specialist investigated Flava House’s coverage status
and prepared an Expedited Request for Investigation Report containing his findings. The
report stated that Flava House was subject to the Workers’ Compensation Law and did not
have insurance at the time of Mr. Harper’s injury.
Findings of Fact and Conclusions of Law
At a Compensation Hearing, Mr. Harper must prove by a preponderance of the
evidence that he is entitled to the requested benefits. Willis v. Allstaff, 2015 TN Wrk. Comp.
App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-239(c)(6)
(2019).
Based on the uncontroverted proof, the Court holds the preponderance of the
evidence showed Mr. Harper sustained an injury arising primarily out of and in the course
and scope of his employment on July 22, 2018. Therefore, the Court turns to his requested
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workers’ compensation benefits.1
Regarding medical benefits, the Workers’ Compensation Law requires that an
employer furnish medical treatment made reasonably necessary by an injury. Tenn. Code
Ann. § 50-6-204(a)(1)(A). Flava House did not do so, and Mr. Harper was forced to seek
treatment on his own. Accordingly, Flava House shall pay Mr. Harper’s past medical
expenses for treatment of his injuries in Exhibit 5 and provide ongoing treatment. The
Court designates Dr. Hickerson as the authorized treating physician.
Next, the Court addresses Mr. Harper’s claim for temporary total disability benefits
(TTD). He testified without contravention regarding the details of his accident, and the
medical records and Dr. Hickerson’s testimony confirm both the injury and his treatment
for it. Dr. Hickerson testified he would have restricted Mr. Harper from work from July 23
through September 14, 2018. Thus, the Court holds Mr. Harper proved his disability
resulted from the accident, a causal connection between his injury and the accident, and
the duration of his disability. See Jones v. Crencor Leasing and Sales, 2015 TN Wrk.
Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015).
As to the amount of TTD, Mr. Harper’s unrefuted testimony was that he worked 52
hours per week at the rate of $13 per hour, which results in an average weekly wage of
$676.2 Based on that average weekly wage, he is entitled to a compensation rate of $450.69
from July 23 to September 14, 2018, a period of 7.7 weeks, or $3,470.31.
As the prevailing party, Mr. Harper’s counsel submitted an affidavit requesting
discretionary costs under Rule 54 of the Tennessee Rules of Civil Procedure. Rule 54.04(2)
provides recovery for reasonable and necessary “court reporter expenses for depositions”
and “expert witness fees for depositions.” See Garassino v. W. Express, Inc., No. M2016-
02431-SC-R3-WC, 2018 Tenn. LEXIS 60, at *8-9 (Tenn. Workers’ Comp. Panel Feb. 8,
2018).
Here, Mr. Harper’s counsel requested costs totaling $1,776.67, representing Dr.
Hickerson’s deposition fee, the court reporter fee for Dr. Hickerson’s deposition, costs for
requests for medical records, and administrative expenses. The Court holds Dr.
Hickerson’s deposition fee and the court reporter fee are recoverable discretionary costs
under Rule 54. Thus, the Court holds Flava House, LLC shall pay discretionary costs of
1
Mr. Harper did not introduce any proof of permanent disability or make that request; therefore, no
permanent disability benefits are awarded.
2
Tennessee Compilation Rules and Regulations 0800-02-21-.10(3) (Aug. 2019) requires in part that an
employer must file a wage statement with the Clerk within fifteen days after the filing of a dispute
certification notice. Flava House did not file a wage statement, so the Court relied on Mr. Harper’s
unrebutted testimony.
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$1705.00.3 The Court denies the remaining costs.
Finally, because Flava House did not have workers’ compensation insurance at the
time of the injury, the Uninsured Employers Fund has discretion to pay limited benefits if
certain criteria are met. (See attached Benefits Request Form.) Mr. Harper must show,
through the testimony, medical records, and the Bureau’s Compliance report, that he: 1)
worked for an uninsured employer; 2) suffered an injury arising primarily within 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 of the employer’s lack of
coverage within sixty days of the injury; and, 5) secured a judgment for workers’
compensation benefits against Flava House for the injury. Tenn. Code Ann. § 50-6-
801(d)(1)-(5).
The Court finds Mr. Harper, a Tennessee resident, worked for an uninsured
employer, Flava House, LLC, and proved by a preponderance of the evidence that he
suffered an injury arising primarily from his employment on July 22, 2018. Further, this
order serves as a judgment for benefits. Regarding notice to the Bureau within sixty days,
Mr. Harper showed through Ms. Bragg’s testimony that he reasonably relied on the
coverage check on the Tennessee website and the statements of Flava House’s counsel
until, on January 15, 2019, he learned Flava House no longer had attorney representation
and likely no workers’ compensation insurance. He then filed a Petition for Benefit
Determination that same day, which was within 60 days of learning of the lack of coverage.
Thus, the Court holds that Mr. Harper satisfied the requirements of section 50-6-
801(d) to seek discretionary payment through the Uninsured Employers Fund.
IT IS, THEREFORE, ORDERED as follows:
1. Flava House, LLC shall pay temporary total disability benefits from July 23 through
September 14, 2018, in the amount of $3,470.31.
2. Flava House, LLC shall provide Mr. Harper future medical treatment under
Tennessee Code Annotated section 50-6-204(a)(1)(A). The Court designates Dr.
Hickerson as the authorized physician.
3. Flava House, LLC shall pay Mr. Harper’s past medical bills from Regional One
Health attached as Exhibit 5.
4. Flava House, LLC shall pay Mr. Harper’s discretionary costs of $1,705.00.
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Mr. Harper’s counsel is waiving the twenty-percent attorney’s fee to which he is entitled under Tennessee
Code Annotated section50-6-226 (2019).
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5. Costs of $150.00 are assessed against Flava House, LLC under Tennessee
Compilation Rules and Regulations 0800-02-21-.07 (August 2019), to be paid
within five days of this order becoming final.
6. Mr. Harper’s counsel shall prepare and file the SD-2 with the Clerk within ten
business days of the date of this order under Tennessee Code Annotated section 50-
6-224.
7. Unless appealed, the order shall become final thirty days after issuance.
ENTERED January 22, 2021.
_____________________________________
JUDGE AMBER E. LUTTRELL
Court of Workers’ Compensation Claims
Appendix
Exhibits
1. Petition for Benefit Determination
2. Request for Investigation
3. Expedited Request for Investigation Report
4. Dr. Hickerson’s deposition
5. Regional One Health medical bills and records
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Scheduling Order
4. Motion for Status Conference to Continue Scheduling Order Deadlines
5. Order Granting Motion to Extend
6. Dispute Certification Notice (post-discovery)
7. Order Continuing Compensation Hearing
8. Order Setting Compensation Hearing
9. Employee’s Notice of Exhibits
10. Employee’s Compensation Hearing Brief
11. Employee’s Pre-Compensation Hearing Statement
12. Order Continuing Compensation Hearing
13. Order Resetting Compensation Hearing
14. Notice of Compensation Hearing
15. Certified mail sent to Flava House of Notice of Compensation Hearing
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16. Employee’s Motion to Present Witness by Telephone
17. Notice of Compensation Hearing by Videoconference
18. Certified mail sent to Flava House of Notice of Compensation Hearing by
Videoconference
19. Jonathan Louis May’s Affidavit of Case Expenses
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on January 22, 2021.
Name Certified Mail Email Service sent to:
Mail
Jonathan May, X jmay@forthepeople.com
Employee’s Attorney shaynes@forthepeople.com
Flava House, X X 3279 Kirby Parkway
Uninsured Employer Memphis, TN 38115
and
7761 Roxshire Cove,
Memphis, TN 38125
LaShawn Pender, X Lashawn.pender@tn.gov
Program Coordinator wc.memphis@tn.gov
Compliance Unit X Amanda.terry@tn.gov
_________________________________
Penny Shrum, Court Clerk
wc.courtclerk@tn.gov
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Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, 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 thirty calendar days of the date the
compensation hearing order was filed. When filing the Notice of Appeal, you must serve
a copy upon the opposing party (or attorney, if represented).
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 filing fee. You must file the fullycompleted
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
your 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. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar 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 of
the evidence 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. After the Workers’ Compensation Judge approves the record and the court clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. The appealing party
has fifteen calendar days after the date of that notice to submit a brief to the Appeals Board.
See the Practices and Procedures of the Workers’ Compensation Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate Procedure.
If neither party timely files an appeal with the Appeals Board, the trial court’s Order will
become final by operation of law thirty calendar days after entry. See Tenn. Code Ann. §
50-6-239(c)(7).
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/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________ 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 filestamped on
the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ 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 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 I 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]