Eicke, Richard v. Alford Sellars , 2020 TN WC 126 ( 2020 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
RICHARD EICKE, ) Docket No. 2020-05-0329
Employee, )
Vv. )
)
ALFORD SELLARS, ) State File No. 22919-2020
Uninsured Employer. )
)
)
) Judge Dale Tipps
)
EXPEDITED HEARING ORDER GRANTING REQUESTED BENEFITS
This case came before the Court on November 24, 2020, for an Expedited Hearing
on whether Mr. Eicke is entitled to medical and temporary disability benefits. Mr. Eicke
claimed he was Mr. Sellars’s employee at the time of his injury.! For the reasons below,
the Court holds that Mr. Eicke is likely to prevail at a hearing on the merits that he was an
employee and is entitled to medical treatment and temporary disability benefits.
History of Claim
Mr. Eicke testified that he was one of about ten construction employees of Mr.
Sellars, who controlled the work, furnished all the tools, and scheduled the work hours. He
was injured on his first day of work, but he was hired at $15.00 per hour for at least forty
hours per week.
At aconstruction site on March 16, 2020, a joist gave way, causing Mr. Eicke to fall
several feet to the first floor. He knew right away that he had broken something in his left
foot. Mr. Sellars witnessed the accident, took Mr. Eicke to the emergency room, and drove
him home a few hours later. Mr. Sellars also gave him some money to cover the cost of
medications prescribed at the hospital. However, he failed to pay for Mr. Eicke’s hospital
''Mr. Sellars failed to appear and participate in the hearing, so Mr. Eicke’s proof was unrebutted.
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visit or provide any further medical treatment or temporary disability payments.
Dr. Brad Askam treated Mr. Eicke for a fracture of his left calcaneus, which he
related to the March 16 fall. Dr. Askam performed surgery on March 27, reducing the
fracture and fixing it with a plate and screws. On April 13, he noted Mr. Eicke was doing
well but was restricted from weight-bearing for four weeks.
Mr. Eicke later developed an infection of the surgical site and has not fully
recovered from the injury. He continues to have significant pain and must walk with a
cane. Mr. Eeicke is unable to afford additional medical treatment and has been unable to
work since the accident.
Findings of Fact and Conclusions of Law
For the Court to grant Mr. Eicke’s request, he 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 prove a compensable
injury, Mr. Eicke must show that his alleged injuries arose primarily out of and in the course
and scope of her employment. This includes the requirement that he must show, “to a
reasonable degree of medical certainty that [the incident] contributed more than fifty
percent (50%) in causing the . . . disablement or need for medical treatment, considering
all causes.” See Tenn. Code Ann. § 50-6-102(14).
In proving causation, it is not required that a physician use particular words or
phrases included in the statutory definition of “injury.” Instead, a physician may give an
opinion that meets the legal standard without couching the opinion in a “rigid recitation of
the statutory definition.” Panzarella y. Amazon.com, Inc., 2017 TN Wrk. Comp. App. Bd.
LEXIS 30, at *14 (May 15, 2017). Dr. Askam’s note stated that Mr. Eicke “sustained a
fall from height on March 16, 2020, resulting in a closed, comminuted displaced intra-
articular fracture of the left calcaneus.” Although this opinion does not specifically address
the statutory threshold of “more than fifty-percent,” it is a clear and unequivocal statement
that Mr. Eicke’s workplace fall caused his foot fracture. Thus, he appears likely to prove
a compensable injury.
Medical Benefits
Having found Mr. Eicke is likely to prevail in proving a work-related injury, the
Court turns to his request for medical benefits. Under the Workers’ Compensation Law,
“the employer or the employer’s agent shall furnish, free of charge to the employee, such
medical and surgical treatment . . . made reasonably necessary by accident[.]” Tenn. Code
Ann. § 50-6-204(a)(1)(A). Further, Tennessee Code Annotated section 50-6-
204(a)(3)(A)G) requires that, “when the employee has suffered an injury and expressed a
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need for medical care,” the employer must provide a medical panel from which the
employee may select the treating physician. Here, the Court holds Mr. Eicke provided
sufficient evidence to show that he is entitled to a panel of physicians. Mr. Sellars shall
provide a panel from which Mr. Eicke may choose an authorized physician for evaluation
and, if appropriate, further treatment.
The Court also admitted medical bills from Tennessee Orthopedic Alliance and
Murfreesboro Anesthesia Group. They reflect expenses Mr. Eicke incurred because of his
work injury, and the Court holds that Mr. Sellars is responsible for payment of those bills.
Temporary Disability Benefits
Mr. Eicke also requested temporary disability benefits. To receive temporary total
disability benefits, he must prove (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. For temporary partial disability benefits, Mr. Eicke must
show that his treating physician returned him to work with restrictions that Mr. Sellars
either could not or would not accommodate. See Jones v. Crencor Leasing and Sales, 2015
TN Wrk. Comp. App. Bd. LEXIS 48, at *7, 8 (Dec. 11, 2015).
The evidence shows that Dr. Askam placed Mr. Eicke on non-weightbearing
restrictions from March 20 through May 13 and that Mr. Sellars failed to provide work
within those restrictions. Although Mr. Eicke may eventually establish other periods of
disability, at this time the Court can only find he appears likely to prove entitlement to
temporary partial disability benefits for this period at the compensation rate of $400.00.
Finally, concerning payment of benefits, Mr. Sellars must provide medical and
temporary disability benefits. However, since he 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. Eicke must show 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 Mr. Sellars for the injury. Tenn.
Code Ann. § 50-6-801(d)(1)-(5).
The Court finds that Mr. Eicke worked for an uninsured employer, Alford Sellars,
and that he is likely to prevail at a hearing on the merits that he suffered an injury arising
primarily from employment on March 16, 2020. He was a Tennessee resident on that date,
and he provided notice to the Bureau of his injury and Mr. Sellars’s lack of insurance within
sixty days. This order serves as a judgment for benefits. Therefore, Mr. Eicke satisfied all
of the requirements of section 50-6-801(d).
IT IS, THEREFORE, ORDERED as follows:
1.
Mr. Sellars shall provide Mr. Eicke with a panel of physicians and medical treatment
made reasonably necessary by his March 16, 2020, injury under Tennessee Code
Annotated section 50-6-204.
. Mr. Sellars shall pay Mr. Eicke temporary partial disability benefits in the amount
of $3,142.86 for the period of March 20, 2020, through May 13, 2020.
. Mr. Eicke satisfied the requirements of Tennessee Code Annotated section 50-6-
801(d) and thus is eligible to request limited medical benefits from the Uninsured
Employers Fund at the Administrator’s discretion. His attorney must complete and
file the attached form.
. This case is set for a Status Hearing on February 16, 2021, at 9:00 a.m. Please call
toll-free at 855-874-0473 to participate. Failure to call or appear might result in a
determination of the issues without your further participation. All conferences are
set using Central Time.
. 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 WCCompliance.Program@tn.gov no later than the
seventh business day after entry of this Order. Failure to submit the necessary
confirmation within the period of compliance might result in a penalty assessment
for non-compliance. For questions regarding compliance, please contact the
Workers’ Compensation Compliance Unit via email at
WCCompliance.Program@tn. gov.
ENTERED December 2, 2020.
{7 a
L FEZ a 2
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Indexed medical records
Affidavit of Alex Frierson
Richard Eicke’s Rule 72 Declaration
Notarized Investigative Report
Medical Bills
wewhs
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employee’s Pre-Hearing Brief
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
December 2, 2020.
Name Certified Fax | Email | Service sent to:
Mail
David Goodman, x dgoodman@forthepeople.com
Employee’s Attorney cc: bgalyan@forthepeople.com
Alford Sellars, x 414 Double Springs Road
Employer Murfreesboro, TN 37127
Amanda Terry xX Amanda. Terry@tn.gov
LaShawn Pender x lashawn.pender@tn.gov
j MAA
% d
74
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.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/
we.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):
D Expedited Hearing Order filed on UO) Motion Order filed on
O Compensation Order filed on 0 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 !nj.:
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