# Parke, Gregory v.Michael Bergeron d/b/a MB Construction

> Tennessee Court of Workers' Compensation Claims · August 1, 2024 · 2024 TN WC 55

URL: https://www.frixlaw.com/law-library/cases/10494411

## Case

- **Court:** Tennessee Court of Workers' Compensation Claims
- **Decided:** August 1, 2024
- **Citations:** 2024 TN WC 55
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Addington
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10494411

## Opinion text

FILED
Aug 01, 2024
12:28 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS

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

GREGORY PARKE, ) Docket Number: 2023-02-5069
Claimant, )
v. ) State File Number: 860311-2023
MICHAEL BERGERON d/b/a )
MB CONSTRUCTION, ) Judge Brian K. Addington
Respondent. )

EXPEDITED HEARING ORDER

Gregory Parke requested medical and temporary disability benefits for an injury he
sustained while working for Michael Bergeron, owner of MB Construction. Mr. Bergeron
denied the claim on the basis that Mr. Parke was an independent contractor and not an
employee. After a July 25, 2024 expedited hearing, the Court holds Mr. Parke is entitled to
the requested benefits.
History of Claim
Mr. Parke, a Tennessee resident, was installing flooring for Mr. Bergeron on July 5,
2023, when he accidently cut his left hand with a razor knife. He notified Mr. Bergeron,
but the company did not have workers’ compensation insurance.
Because Mr. Bergeron did not provide any workers’ compensation benefits, Mr.
Parke received unauthorized conservative care and continued working until July 21, when
pain and swelling caused him to seek emergency treatment. Mr. Parke was diagnosed with
septic arthritis and underwent surgery. His treating surgeon, Dr. Jason Fogelman, gave him
a non-weightbearing restriction for his left hand and ordered physical therapy. However,
Mr. Parke was unable to afford the therapy.1
On September 4, 2023, Dr. Fogleman released Mr. Parke with ten-pound lifting
restrictions for his left hand. Later that month, Mr. Parke returned with pain and swelling,

1
Mr. Parke filed a Petition for Benefit Determination on July 27, 2023, notifying the State of his injury and
disclosing that Mr. Bergeron did not have workers’ compensation insurance.

1
and Dr. Fogleman recommended an index finger amputation. The surgery was not
scheduled because of Mr. Parke’s inability to pay.
Mr. Parke demonstrated to the Court that he can barely move his left index finger.
He has lost most of his grip strength in that hand and endures constant pain.
As to his employment, Mr. Parke stated that Mr. Bergeron was his employer. Mr.
Bergeron told him when and where to show up for work, controlled his weekly hours, and
paid him $800.00 per week.
Mr. Parke requested temporary total disability benefits starting July 21, 2023. He
was unable to find work with his restrictions until September 25. He also requested
payment of past medical treatment in the amount of $9,675.16 and future medical
treatment, including surgery, for his work injury.2
Findings of Fact and Conclusions of Law
To obtain the requested relief, Mr. Parke must show a likelihood of prevailing at a
hearing on the merits. Tenn. Code Ann. § 50-6-239(c)(6) (2023).
First, Mr. Parke must present sufficient evidence that he was Mr. Bergeron’s
employee. Section 50-6-102(10)(A) defines an “employee” to include “every person . . . in
the service of an employer . . . under any contract of hire . . . written or implied[.]” The
following factors are used to determine whether a worker is an employee or independent
contractor:
(a) The right to control the conduct of the work;
(b) The right of termination;
(c) The method of payment;
(d) The freedom to select and hire helpers;
(e) The furnishing of tools and equipment;
(f) Self-scheduling of working hours; and
(g) The freedom to offer services to other entities.

Id. at -102(10)(D)(i).

The proof showed that Mr. Parke reported to work at the location assigned by Mr.
Bergeron. He performed the type of work Mr. Bergeron told him to do, was paid weekly,
and Mr. Bergeron controlled his pay and work schedule. The Court finds that Mr. Parke is
likely to prove he was an employee at a final hearing.
Mr. Parke testified, and the medical records show, that he suffered a serious injury
to his finger while working for Mr. Bergeron. He proved he is likely to succeed at a hearing

2
Mr. Bergeron did not appear for the hearing.

2
on the merits that his injury arose primarily out of and in the course and scope of his
employment under section 50-6-102(12).
As for the past medical treatment, “an employer who does not timely provide a panel
of physicians risks being required to pay for treatment an injured worker receives on his
own.” Ducros v. Metro Roofing and Metal Supply Co., 2017 TN Wrk. Comp. App. Bd.
LEXIS 62, at *10 (Oct. 17, 2017). Because Mr. Bergeron did not provide a panel, Mr.
Parke sought treatment on his own. He offered bills from the medical treatment of his injury
in the amount of $9,675.16, which Mr. Bergeron must pay. Mr. Parke’s attorney is entitled
to fees of 20% of this award. The Court holds that these expenses were reasonable and
necessary to treat his injury.

As for future medical treatment, section 50-6-204(a)(1)(A) requires Mr. Bergeron
to “furnish, free of charge to the employee, such medical and surgical treatment, medicine,
medical and surgical supplies . . . reasonably necessary by accident[.]” Mr. Bergeron must
authorize and pay for future medical treatment with Dr. Fogleman, whom the Court
designates as Mr. Parke’s authorized treating physician.
Mr. Parke also requested temporary partial disability benefits. To obtain these
benefits, he must show that Dr. Fogleman returned him to work with restrictions that Mr.
Bergeron either could not or would not accommodate. See Jones v. Crencor Leasing and
Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *8 (Dec. 11, 2015).
Mr. Parke presented evidence that Dr. Fogleman significantly restricted the use of
his injured hand from July 21 through September 24, 2023. Thus, the Court holds that Mr.
Parke is entitled to temporary partial disability benefits for that period.
To calculate temporary disability benefits, the Court relies on the wage statement
Mr. Bergeron filed showing Mr. Parke’s average weekly wage was $711.76 with a resulting
compensation rate of $474.50, which included two vacation weeks. Mr. Parke argued his
vacation weeks should not be included in his average weekly wage calculation. However,
voluntary absences from work are not deducted from the 52-week period used to calculate
an average weekly wage. Goodman v. HBD Indus., 208 S.W.3d 373, 377 (Tenn. 2006).
Therefore, Mr. Parke is entitled to temporary partial disability benefits at the weekly
compensation rate of $474.50 from July 21 through September 24, 2023, in the amount of
$4,406.08. Mr. Parke’s attorney is entitled to a 20% fee from this award.
Finally, Mr. Bergeron did not have workers’ compensation insurance at the time of
Mr. Parke’s injury. The Uninsured Employers Fund has discretion to pay limited temporary
disability benefits and medical benefits if certain criteria are met. (See attached Benefits
Request Form). Mr. Parke must establish 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 Mr. Bergeron’s lack of coverage within 180 days of the injury; and, 5)

3
secured a judgment for workers’ compensation benefits against Mr. Bergeron. Tenn. Code
Ann. § 50-6-801(d)(1)-(5).
The Court finds Mr. Parke worked for an uninsured employer, Mr. Bergeron, and
that he is likely to prove at a hearing on the merits that he suffered an injury arising
primarily in the course and scope of employment on July 5, 2023. He was a Tennessee
resident on that date, and he notified the Bureau within 180 days of the injury and Mr.
Bergeron’s lack of insurance. This order serves as a judgment for benefits.
Thus, the Court holds that Mr. Parke satisfied the requirements of section 50-6-
801(d). He may complete the enclosed form for consideration of a discretionary payment
through the Uninsured Employers Fund.
Also, the Court refers this case to the Compliance Program for consideration of
penalty assessments from Mr. Bergeron’s failure to offer medical benefits, as well as any
other applicable penalties. See Tenn. Code Ann. § 50-6-118.

IT IS, THEREFORE, ORDERED AS FOLLOWS:

1. Mr. Bergeron must pay past medical treatment under Tennessee Code Annotated
section 50-6-204(a)(1)(A) in the amount of $9,675.16. Mr. Parke’s attorney is
entitled to fees of 20% of this award.

2. Mr. Bergeron must provide reasonable and necessary medical treatment causally
related to the work injury under Tennessee Code Annotated section 50-6-
204(a)(1)(A). Dr. Jason Fogleman remains the treating physician.

3. Mr. Bergeron must pay Mr. Parke temporary disability benefits in the lump-sum
amount of $4,406.08. Mr. Parke’s attorney is entitled to fees of 20% of this award.

4. Mr. Parke is eligible to request benefits from the Uninsured Employers Fund at the
Administrator’s discretion under Tennessee Code Annotated section 50-6-
802(e)(1). To do so, he must complete and file the attached form.

5. The case is referred to the Compliance Program for consideration of penalties
against Mr. Bergeron for failure to timely provide medical treatment.

6. The Court sets a status hearing on September 17, 2024, at 2:30 Eastern Time. You
must dial 855-543-5044 to participate.

7. Unless interlocutory appeal of this Expedited Hearing Order is filed, compliance
with this order must occur by seven business days of entry of this Order as required
by Tennessee Code Annotated section 50-6-239(d)(3). Mr. Bergeron must submit
confirmation of compliance by email to WCCompliance.Program@tn.gov by the
4
compliance deadline. Failure to do so may result in a penalty assessment for non-
compliance.

8. For compliance questions, please contact the Workers’ Compensation Compliance
Unit by email at WCCompliance.Program@tn.gov.

It is ORDERED.

ENTERED August 1, 2024.

/s/ Brian K. Addington
______________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims

5
Appendix

Exhibits:
1. Affidavit of Gregory Parke
2. Wage Statement
3. Notice of Denial
4. (Collective) medical bills:
Ballad Health
Tri-Cities ER Physicians
Carter County EMS
Bristol Regional Medical Center
Mountain Empire Radiology
Paragon Anesthesia
Watauga Orthopedics
SE Physician Services
5. Request for Information-Medical Statement
6. Final Medical Report
7. (Collective) medical records:
Ballad Health Urgent Care
Ballad Health-Sycamore Shoals Hospital
Ballad Health-Bristol Regional Medical Center
Watauga Orthopedics

6
CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on August 1, 2024.

Name Certified Fax Email Service sent to:
Mail
Todd East, X X todd@toddeast.com
Claimant’s Attorney
Michael Bergeron d/b/a X X bergeronmichael66@gmail.com
MB Construction, 301 ½ West G Street
Respondent Elizabethton, TN 37643
UEF Program X claudia.byers@tn.gov
lashawn.pender@tn.gov
Compliance Program X WCCompliance.Program@tn.gov

______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov

7
Right to Appeal:
If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation
Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims before the expiration of the deadline.
 If the order being appealed is “expedited” (also called “interlocutory”), or if the
order does not dispose of the case in its entirety, the notice of appeal must be filed
within seven (7) business days of the date the order was filed.
 If the order being appealed is a “Compensation Order,” or if it resolves all issues
in the case, the notice of appeal must be filed within thirty (30) calendar days of
the date the Compensation Order was filed.
When filing the Notice of Appeal, you must serve a copy on 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 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 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 your appeal.

3. You are responsible for ensuring a complete record is presented on appeal. If no court
reporter was present at the hearing, you may request from the Court Clerk the audio
recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your
appeal, which the Appeals Board has emphasized is important for a meaningful review of
the case, a licensed court reporter must prepare the transcript, and you must file it with the
Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,
and you will receive notice once it has been submitted. For deadlines related to the filing of
transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the
Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)

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.
If neither party timely files an appeal with the Appeals Board, the Court Order
becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory
orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).

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 file-
stamped 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]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10494411. Public record. Not legal advice.