Diaz, Ruben v. Create and Construct, LLC

FILED
Jul 05, 2019
11:00 AM(CT)

TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE
Ruben Diaz, ) Docket No. 2019-06-0263
Employee, )
)
Vv. ) State File No. 9687-2019
)
Create and Construct, LLC, )
Uninsured Employer. ) Judge Kenneth M. Switzer

EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS

The Court held an expedited hearing on July 2 on Ruben Diaz’s request for
medical and temporary disability benefits.' The present focus is whether Mr. Diaz
suffered an injury arising primarily out of and in the course and scope of employment
with Create and Construct. If so, then the question is to which benefits is he entitled.
The Court holds he suffered an injury arising primarily out of his employment and orders
Create and Construct to provide a panel of orthopedic specialists as well as payment of
medical bills incurred for this injury. However, on the present record, Mr. Diaz is not
entitled to temporary disability benefits.

Claim History
Mr. Diaz is a Davidson County resident. He testified that in August 2018, he

began working for Create and Construct. On December 30, 2018, he injured his left rib
and back while demolishing a floor at work.” He slipped and fell as he pulled a cart

'Mr. Diaz’s principal language is Spanish. A certified court interpreter interpreted at the hearing and also
translated Mr. Diaz’s affidavits into the record.

* The Petition for Benefit Determination, Dispute Certification Notice and Affidavit accompanying the
hearing request list an injury date of November 30, 2018. However, the Compliance investigator’s report
lists December 30, 2018, as the date of injury. The emergency room records likewise contained histories
that Mr. Diaz became injured on December 30. Mr. Diaz clarified the date of injury in his second

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containing concrete up a wet, wooden ramp.

The next day, Mr. Diaz returned to the jobsite and reported the injury to Lance
Pettyjohn, one of Create and Construct’s owners. Mr. Pettyjohn refused to offer
treatment. Mr. Diaz then went to the hospital. Records from that visit stated that he
“presents for left posterior back pain after a slip and fall while at work carrying concrete
down a ramp using a wheel barrel [sic].” Providers diagnosed left-rib pain and took him
off work for two days. They told him to follow up with his primary care physician or to
return if his pain worsened. It did, so Mr. Diaz sought emergency care on January 5,
2019, at which time providers diagnosed a rib fracture and excused him from work
through January 7. He filed no additional treatment records.

Mr. Diaz filed a Petition for Benefit Determination on February 1, 2019, alleging
he suffered a back injury and fractured rib. Because he also alleged that Create and
Construct is uninsured, the Bureau referred the case to its Compliance Unit.

Per a written report, a Compliance investigator interviewed Brendon Glean, the
co-owner of Create and Construct, who said that Mr. Diaz was a subcontractor. The
business owners are on the Workers’ Compensation Exemption Registry.

Mr. Diaz testified in his affidavit and at the hearing regarding his status as an
employee. He stated that Mr. Pettyjohn ordered “what to do at work.” Mr. Pettyjohn
also controlled the work hours, told them where to go to work, and paid them weekly by
company checks. Mr. Diaz introduced copies of two of his paychecks bearing Mr.
Pettyjohn’s signature. He said they paid him at an hourly rate, and he never worked
under a contract. The Compliance investigator’s report generally substantiates these
contentions.

Mr. Diaz incurred bills that he said were for treatment of the work injury. They
included $220.07 to Southern Hills Medical Center for emergency room care and $844.00
to the emergency physician, Dr. Drew Flansbaum, both for dates of service of December
31, 2018.2 Mr. Diaz asked the Court to order Create and Construct to pay these bills. He
testified that he currently works for a different employer for a lower rate of pay because
he is unable to lift heavy objects due to pain and fear of re-injury. He also seeks
temporary total disability benefits.

affidavit as December 30, 2018.

3 Mr. Diaz additionally filed a bill from Radiology Alliance. However, the bill does not list a date of
service. The Court declined to admit it into evidence because the bill is not clearly related to treatment of
the December 30 accident. Mr. Diaz may obtain additional documentation to establish that the bill relates
to this injury at the final compensation hearing.
Create and Construct did not appear at the hearing, despite receiving a certified-
mail notice. Per the Dispute Certification Notice, its owners contest compensability.

Findings of Fact and Conclusions of Law

Mr. Diaz must present sufficient evidence that he is likely to prevail at a hearing
on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2018); McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Specifically, he must establish that his injury arose primarily out of and in the course and
scope of his employment with Create and Construct. Tenn. Code Ann. § 50-6-102(14).

Mr. Diaz credibly testified regarding the events of December 30, 2018. The Court
finds that he slipped on a wet ramp pushing a heavy wheelbarrow while working for
Create and Construct, resulting in injury and the need for medical treatment. Create and
Construct’s owners did not appear at the hearing to contradict Mr. Diaz’s testimony.
Further, the hospital records documented a history similar to his testimony. Therefore,
the Court holds Mr. Diaz is likely to prevail at a hearing on the merits that he suffered an
injury arising primarily out of and in the course and scope of employment with Create
and Construct.

According to the Dispute Certification Notice, Create and Construct argued the
following defense at mediation: “The employer asserts that he is on the exempt registry
and did not have workers [sic] compensation.” Create and Construct did not appear at the
hearing to raise this as a defense or clarify the mediator’s statement on the Dispute
Certification Notice. Importantly, Tennessee Code Annotated section 50-6-110 lists the
affirmative defenses available to employers. A worker’s or employer’s presence on the
Registry is not among them. Rather, Tennessee Code Annotated section 50-6-902(a)
requires all construction services providers to carry workers’ compensation insurance.
Create and Construct, a construction service provider, was required to carry insurance,
which it failed to do.*

The Court now turns to the requested benefits. Mr. Diaz seeks medical benefits.
Tennessee Code Annotated section 50-6-204(a)(1)(A) requires an employer to provide,
free of charge to the employee, medical treatment made reasonably necessary by the
work accident. Mr. Diaz credibly testified that he continues to experience pain from the
work injury. Thus, the Court orders Create and Construct to offer a panel of three
independent, reputable orthopedic specialists as required under section 50-6-
204(a)(3)(A)(i). Further, Mr. Diaz introduced medical bills and testified that he incurred
them for treatment relating to the work injury. The Court finds the treatment reasonable,

* Although the Compliance investigator’s report addresses whether Mr. Diaz worked as an employee or
subcontractor, the Dispute Certification Notice does not list this as a defense. Therefore, the Court need
not address it.
necessary and related to the accident. Therefore, Create and Construct must pay $220.07
to Southern Hills Medical Center and $844.00 to the emergency physician.

As for Mr. Diaz’s request for temporary disability benefits, Tennessee Code
Annotated section 50-6-205(a) states that no compensation shall be allowed for the first
seven days of disability. The emergency room providers took him off work for two days
at the first visit and three days at the second visit, totaling five days. Thus, on the present
record, Mr. Diaz is not entitled to these benefits.

Finally, concerning payment of benefits, Create and Construct must provide
medical benefits. However, since it did not have workers’ compensation insurance at the
time of the injury, the Uninsured Employers Fund has discretion to pay limited medical
expenses if certain criteria are met. (See attached Benefits Request Form.) Mr. Diaz
must establish, through his testimony, medical records, and the Bureau’s Compliance
report, that he proved or is likely to prove that he: 1) worked for an uninsured employer;
2) suffered an injury arising primarily in 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 Create and
Construct for the injury. Tenn. Code Ann. § 50-6-801(d)(1)-(5).

The Court finds that Mr. Diaz worked for an uninsured employer, Create and
Construct, and that he is likely to prevail at a hearing on the merits that he suffered an
injury arising primarily from employment on December 30, 2018. He was a Tennessee
resident on that date, and he provided notice to the Bureau within sixty days of his injury
and Create and Construct’s lack of insurance. This order serves as a judgment for
benefits. Mr. Diaz satisfied all of the requirements of section 50-6-801(d).

IT IS, THEREFORE, ORDERED as follows:

1. Create and Construct must offer a panel of three orthopedic specialists from which
Mr. Diaz may select one to provide treatment of the work injury.

2. Create and Construct must pay $220.07 to Southern Hills Medical Center for
emergency care and $844.00 to Dr. Flansbaum.

3. This case is set for a Status Hearing on August 20 at 9:15 a.m. Central Time.
The parties must call 615-532-9552 or toll-free at 866-943-0025 to participate.
Failure to call might result in a determination of issues without your participation.

4. Unless an 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).

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The Employer must submit confirmation of compliance with this Order to the
Bureau by email to WCCompliance.Program@tn.gov no later than the seventh
business day after entry of this Order. Failure to submit confirmation within seven
business days may result in a penalty assessment for non-compliance. For
questions regarding compliance, contact the Workers’ Compensation Compliance
Unit via email at WCCompliance.Program@tn.gov.

ENTERED July 5, 2019.

APPENDIX

Exhibits:

1.

Se ge oF

Affidavit

Composite medical records

Expedited Request for Investigation Report

Text messages between Mr. Diaz and Mr. Pettyjohn/Mr. Glean
Paychecks

Medical bills

Affidavit

Notice of expedited hearing and proof of delivery

Technical Record:

ls
Be
By

Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
CERTIFICATE OF SERVICE

I certify that a copy of the Expedited Hearing Order was sent as indicated on July

5, 2019.
Name Certified | Regular | Via Service sent to:
Mail Mail Email
Ruben Diaz, self- x xX 401 Sky Gap Court
represented employee Antioch TN 37013
Create and Construct, xX xX 2715 Bransford Avenue
LLC, self-represented Nashville TN 37204
employer
Compliance X | Lashawn.Pender@tn.gov
Amanda.Terry@tn.gov
DUM hin

Fenny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov

Filed Date Stamp Here
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work
wc.ombudsman@tn.gov
1-800-332-2667

REQUEST FOR BENEFITS FROM THE UNINSURED EMPLOYERS FUND

Eligible employees may use this form to request benefits from the Uninsured Employers Fund (UEF) if
they are injured while working for an employer that failed to provide:

1. Workers’ compensation insurance as required by the TN Workers’ Compensation Law; and,
2. Medical and/or disability benefits as required by the TN Workers’ Compensation Law.

This form MUST be completed and sent via certified mail to the following address:

Tennessee Bureau of Workers’ Compensation
ATTN: UEF Benefit Manager

Uninsured Employers Fund

220 French Landing Drive, Suite 1B

Nashville, TN 37243-1002.

This form MUST be sent within sixty (60) calendar days after the claim is over and MUST include:

1. Acourt order stating your employer owes you benefits and that you may request UEF benefits;

2. Acompleted Internal Revenue Service (IRS) Form, W-9 Request for Taxpayer Information and
Certification available at www.irs.gov; and

3. Acompleted Bureau of Workers’ Compensation Form C31 Medical Waiver and Consent available
on the “Forms” link at www.tn.gov/workerscomp.

I certify that I believe I am eligible for benefits from the UEF; that my employer has not paid all or part of
the benefits Iam due; and my employer has not complied with an order issued by the Court of Workers’
Compensation Claims.

I, , request benefits from the Uninsured Employers Fund.
(Print Your Name)

Signature Date

Tennessee Law allows the State of Tennessee to recover payments made by the UEF for temporary
disability benefits or medical benefits. An agreement between you and your employer for payment of
benefits must be pre-approved by the UEF before being approved by a workers’ compensation judge.

LB-3284 (NEW 4/19) RDA 10183