Welsh, Philip v. Kevin Bowling d/b/a Tri-Star Home Solutions, LLC , 2018 TN WC 106 ( 2018 )

FILED
Jul 19, 2018
08:50 AM(CT)
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Philip Welsh, ) Docket No. 2017-06-2158
Employee, )
V. ) State File No. 91361-2017
Kevin Bowling, d/b/a Tri-Star Home )
Solutions, LLC, ) Judge Kenneth M. Switzer
Employer. )
EXPEDITED HEARING ORDER GRANTING REQUESTED RELIEF
This case came before the Court on July 18 on Philip Welsh’s Request for
Expedited Hearing. The central legal issue is whether Mr. Welsh is likely to prevail at a
hearing on the merits in proving that his injury arose primarily out of and in the course
and scope of his employment with Kevin Bowling, d/b/a Tri-Star Home Solutions, LLC.
For the reasons below, the Court holds Mr. Welsh established he is likely to prevail and is
entitled to the requested medical and temporary disability benefits.
History of Claim
Mr. Bowling hired Mr. Welsh as a fulltime laborer for his home construction
business for $25 per hour. On October 20, 2017, Mr. Welsh fell approximately fifteen
feet from a roof to the concrete below, injuring his wrist, head and spine. Mr. Bowling
took him to St. Thomas Rutherford, which transferred him to Vanderbilt University
Medical Center. He underwent surgery to repair a wrist fracture the following day. His
surgeon restricted him from work as of October 21. After he recovered from surgery, Mr.
Welsh participated in physical therapy for the spinal fracture. He remained off work until
January 24, 2018, when Dr. Jaron Sullivan returned him to work without restrictions. He
later returned to work with a different employer.
Communications between Mr. Welsh and Mr. Bowling deteriorated after the
accident, as Mr. Welsh realized that his employer had no insurance on the date of injury.
He filed a Petition for Benefit Determination on November 27. Afterward, the Bureau’s
TENNESSEE COURT OF
WORKERS' COMPENSATION
Compliance Unit investigated the injury and Mr. Bowling’s insurance coverage status on
the date of injury. The investigator wrote in a report that Mr. Bowling had workers’
compensation in the past and at the time of his report, but “his insurance had lapsed, so
he had no coverage when the accident happened.” Travelers, Mr. Bowling’s carrier, filed
a Notice of Denial, which confirmed, “This claim is denied for no policy in effect for
accident.”
The investigator further stated that Mr. Welsh suffered an injury arising primarily
out of and in the course and scope of his employment after July 1, 2015; he was a
Tennessee resident on the date of injury; and he provided notice of his injury and Mr.
Bowling’s lack of insurance to the Bureau within sixty days of the injury. Mr. Bowling
did not return the investigator’s call, nor did he file any documents to rebut these
findings.
Ultimately, both St. Thomas and Vanderbilt did not charge Mr. Welsh for his
treatment. However, Mr. Welsh introduced bills and receipts totaling $537.99 for out-of-
pocket expenses for his treatment. Mr. Welsh also tracked the miles he drove for his
various treatments. He made five roundtrips from his home where the journeys were
fifteen miles or more for a total of 193 miles. Mr. Welsh asked the Court to order
payment of his medical bills and mileage, as well as temporary total disability benefits
from the time of injury until January 24, 2018.' Mr. Bowling did not attend the hearing,
although the Bureau sent him a notice by certified mail, which was delivered.”
Findings of Fact and Conclusions of Law
Mr. Welsh need not prove every element of his claim by a preponderance of the
evidence to obtain relief at an expedited hearing. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Instead, he must present sufficient evidence from which this Court might determine he is
likely to prevail at a hearing on the merits. /d.; Tenn. Code Ann. § 50-6-239(d)(1)
(2017).
' Mr. Welsh also argued that he returned to work at a lower rate of pay because he suffered permanent
impairment from the work injury. Therefore, he contended Mr. Bowling should compensate him for his
diminished earning ability. This argument supports his entitlement to permanent partial disability
benefits. However, Mr. Welsh introduced no evidence that his physician assigned an impairment rating,
nor is his entitlement to permanent partial disability benefits checked as an issue on the Dispute
Certification Notice. Therefore, the request is not properly before this Court at this time. See Tenn. Code
Ann. §239(b)(1) (‘[O]nly issues that have been certified by a workers’ compensation mediator within a
dispute certification notice may be presented to the workers’ compensation judge for adjudication.”).
* Mr. Bowling received an automatically-generated email reminding him of the upcoming expedited
hearing sent via TNComp on July 15. He replied to the notice on July 18 at 3:13 a.m. to ask about where
the hearing would occur. The Court Clerk responded at 8:38 a.m., providing the Bureau’s address and
stating that the hearing would begin at 9:00 a.m.
Mr. Welsh must prove he suffered an injury as defined under the Workers’
Compensation Law. Specifically, he must show he suffered “an injury by accident...
arising primarily out of and in the course and scope of employment.” Tenn. Code Ann. §
50-6-102(14). If he establishes an injury, then Tennessee Code Annotated section 50-6-
204(a)(1)(A) requires “[t]he employer or the employer’s agent [to] furnish, free of charge
to the employee, such medical . . . treatment . . . made reasonably necessary by
accident[.]” In addition, when an injured worker is required to travel to a medical
provider located outside a radius of fifteen miles from the insured worker’s residence, the
employee shall be reimbursed for reasonable travel expenses. See Tenn. Code Ann. 50-6-
204(a)(3)(D(6)(A).
Applying these principles, Mr. Welsh testified that he fell approximately fifteen
feet to the concrete while working for Mr. Bowling, resulting in severe injuries. The
Court finds Mr. Bowling had notice of the hearing but failed to appear. Thus, Mr.
Welsh’s testimony and documentary evidence are undisputed, and the Court holds Mr.
Welsh suffered a specific injury arising primarily out of and in the course and scope of
his employment. Mr. Bowling is responsible for past and ongoing medical treatment and
must reimburse Mr. Welsh in the amounts of $537.99 for out-of-pocket medical expenses
and $90.71 for mileage.”
Regarding his request for past temporary total disability benefits, Mr. Welsh must
prove (1) total disability from working as the result of a compensable injury; (2) a causal
connection between the injury and his inability to work; and (3) the duration of the period
of disability. Shepherd v. Haren Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd.
LEXIS 15, at *13 (Mar. 30, 2016).
Here, Mr. Welsh suffered an injury arising primarily out of his employment, and
the Court finds Dr. Sullivan totally restricted him from work due to the injury from
October 21, 2017, through January 24, 2018, a period of ninety-five days. Therefore, Mr.
Welsh established he is entitled to the requested temporary disability benefits. Tennessee
Code Annotated section 50-6-207(1)(A) provides, “[for injuries] producing temporary
total disability, [an injured employee is entitled to] sixty-six and two-thirds percent (66
2/3%) of the average weekly wages” during the period of disability. Mr. Welsh’s
uncontradicted testimony was that the parties agreed to a wage of $25 per hour, which at
forty hours per week equates to an average weekly wage of $1,000 and a compensation
rate of $667. For the ninety-five days lost, the temporary disability totals $9,051.60.
* 193 miles multiplied by the applicable rate for mileage reimbursement of $.47 cents per mile equates to
$90.71. See Tenn. Code Ann. § 50-6-204(a)(6)(A) and (B)(providing the mileage reimbursement rate is
equal to that rate paid to state employees for travel in a personal vehicle).
3
Payment of Benefits
Mr. Bowling must provide Mr. Welsh with past medical and temporary disability
benefits. However, payment might not occur because Mr. Bowling did not have workers’
compensation insurance at the time of the accident. Tennessee Code Annotated section
50-6-802(e)(1) provides the Bureau has discretion to pay limited temporary disability and
medical benefits to Mr. Welsh via the Uninsured Employers Fund. The Court finds Mr.
Welsh established the following pre-requisites for coverage by the Fund:
(1) He worked for an employer who failed to carry workers’ compensation
insurance;
(2) He suffered an injury primarily arising in the course and scope of
employment after July 1, 2015;
(3) He was a Tennessee resident on the date of the injury; and,
(4) He provided notice to the Bureau of the injury and the employer’s
failure to provide workers’ compensation insurance no more than sixty
days after the injury occurred.
Tenn. Code Ann. § 50-6-801(d)(1)-(4). The Court adopts the investigator’s conclusions
and holds Mr. Welsh satisfied all the required statutory criteria.
IT IS, THEREFORE, ORDERED as follows:
1.
Mr. Bowling shall reimburse Mr. Welsh for past medical care and mileage in the
amounts of $537.99 and $90.71 respectively.
Mr. Bowling shall pay Mr. Welsh past temporary total disability benefits totaling
$9,051.60.
. Mr. Welsh is eligible to receive medical benefits from the Uninsured Employers
Fund. The clerk shall forward a copy of this order to the Administrator for
consideration of whether to provide medical treatment and temporary disability
benefits.
This case is set for a scheduling hearing on September 17, 2018, at 9:15 a.m.
Central Time. The parties must call (615) 532-9552 or (toll-free) (866) 943-0025
to participate. Failure to appear by telephone may result in a determination of the
issues without your further participation.
ENTERED July 19, 2018.
JUDGE KENNETH M.S
Court of Workers’ CompewSation Claims
APPENDIX
Evidence:
Oe NINDAAARYN
Affidavit of Philip Welsh and attachments
Affidavit of Phillip Graves and attachments
FROI
Denial
Expedited Request for Investigation Report
Compilation Medical Records: St. Thomas, Vanderbilt, Results Physiotherapy
Off-work slips
Photos of injury
Medical bills and spreadsheet for Mr. Welsh’s out-of-pocket expenses
10. Mileage spreadsheet
11. Certified mail receipt documenting Mr. Welsh’s attempts to serve his Request for
Expedited Hearing
12. Certified mail receipt documenting Mr. Welsh’s attempts to serve Mr. Graves’
affidavit
13. USPS Tracking History; certified mail “being returned to sender”
14. Late-filed letter from Dr. Sullivan, January 24, 2018
Technical Record:
l.
Mm B&W Nb
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Certified mail receipt: Notice of Expedited Hearing delivered to Mr. Bowling
Bowling email response to TNComp hearing reminder
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent to the following
recipients by these methods of service on July 19, 2018.
UEF
Courtesy Copy Only
Name Certified | Via Via _ | Service sent to:
Mail Fax Email
Philip Welsh, x x 117 Maureen Dr.
Self-represented Hendersonville, TN 37075
employee welshjrp@comcast.net
Kevin Bowling, xX XxX 731 Lovers Lane
Self-represented Lebanon TN 37087
employer Kevinbowling1026@gmail.com
LaShawn Pender, xX Lashawn.pender@tn.gov
ne
PENNY SHRUM, Court Clerk
WC.CourtClerk@tn.gov