The opinion
COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
EMPLOYEE: Vestal Privette DOCKET #: 2015-02-0013
STATE FILE#: 6007-2015
EMPLOYER: Privette Construction DATE OF INJURY: October 14,2014
INSURANCE CARRIER: Amtrust
EXPEDITED HEARING ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge on June 17, 2015,
upon the Request for Expedited Hearing filed by Vestal Privette (Mr. Privette), the employee, on
June 4, 2015, pursuant to Tennessee Code Annotated section 50-6-239 to determine if the employer,
Privette Construction (PCON), is obligated to provide temporary disability and medical benefits.
Considering the applicable law, testimony of the witness, documentary evidence, argument of
counsel and the technical record, this Court finds that Mr. Privette is entitled to the requested
disabiliy and medical benefits.
ANALYSIS
Issues
1. Whether Mr. Privette suffered an injury that arose primarily out of and in the course
and scope of employment with PCON.
2. Mr. Privette's correct average weekly wage and compensation rate.
3. Whether Mr. Privette is entitled to past or future medical benefits.
4. Whether Mr. Privette is entitled to past or future temporary disability benefits.
Evidence Submitted
Mr. Privette testified telephonically.
The Court designated the following as the technical record:
• Petition for Benefit Determination
• Dispute Certification Notice
• Request for Expedited Hearing.
1
The Court did not consider attachments to the above filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in the above filings as allegations
unless established by the evidence.
The Court admitted the following into evidence:
• Exhibit 1: First Reports oflnjury (2 pages)
• Exhibit 2: Wage Statement (2 pages)
• Exhibit 3: Job Description (1 page)
• Exhibit 4: Medical Bills (4 pages)-marked for identification only
• Exhibit 5: Letter from Defense Counsel to Dr. Ariel Spencer (2 pages)
• Exhibit 6: Statement of Mr. Larry Privette (2 pages).
• Exhibit 7: Laughlin Memorial Hospital Medical Records (11 pages)
• Exhibit 8: 2014 W-2 form for Mr. Privette's work for PCON (1 page)
• Exhibit 9: Pay checks (6 pages)
• Exhibit 10: ESTU Physicians Medical Records (10 pages)
• Exhibit 11: Bank Envelopes (31 pages) marked only for identification
• Exhibit 12: Affidavit ofVestal Privette (4 pages)
• Exhibit 13: Affidavit of Larry Privette (2 pages).
History of Claim
Mr. Privette worked as a saw man 1 for PCON. Larry Privette, Mr. Privette's brother, owns
PCON.
On December 10, 2014, Mr. Privette worked all day cutting plywood for PCON. As he lifted
a sheet of plywood into the rafters of the project home, he almost dropped the sheet. When Mr.
Privette reached for the sheet, he felt pain in his abdomen. He finished his shift and went home but
the pain continued.
Mr. Privette worked the next day and the pain worsened. That night at home, Mr. Privette's
girlfriend noticed a lump in his groin. Mr. Privette worked the following day but experienced severe
pain.
Mr. Privett, following his shift on December 12,2015, told his brother that he was going to
the hospital for his injury. His brother told him to go to the hospital but that it was too late to file a
workers' compensation claim. Mr. Privette did not go to the hospital that day.
On December 14, 2014, Larry Privette called Mr. Privette and told him that he did not need
him for work anymore. Mr. Privette reminded his brother that he needed medical treatment. Larry
Privette told Mr. Privette to get medical attention, but he did not offer to pay for the treatment.
1
A saw man cuts boards and sheets of wood to length.
2
On January 5, 2015, Mr. Privette called his brother and informed him he was going to the
hospital and wanted his treatment paid for by workers' compensation. Larry Privette told Mr.
Privette to go to the hospital but advised him it was too late to file a workers' compensation claim.
January 5, 2015, was the last time the brothers spoke.
Mr. Privette sought medical treatment at Laughlin Memorial Hospital on January 5, 2015.
Mr. Privette reported an injury at work lifting plywood. Dr. Annett Thomas diagnosed a left inguinal
hernia and advised Mr. Privette to see his personal physician (Ex. 7, page 3).
Mr. Privette sought medical treatment with Dr. Ariel Spencer with ETSU Physicians on
March 11, 2015. Dr. Spencer diagnosed a left inguinal hernia. He related the hernia to Mr.
Privette's lifting incident in December 20 14. Dr. Spencer recommended surgery to repair the hernia
(Ex. 10, page 9).
On March 17, 2015, Attorney Fred Baker, defense counsel, wrote Dr. Spencer and requested
his opinions on causation and Mr. Privette's work status following the injury (Ex. 5).
On April 9, 2015, Dr. Spencer replied to Attorney Baker's letter as follows:
Based on the history I obtained from the patient and on physical exam I
performed as his physician, I affirm within a reasonable degree of
medical certainty that Vestal Privette suffered an injury by accident
primarily out of and in the course and scope of his employment resulting
in an inguinal hernia; and that this hernia appeared suddenly; and that
this hernia was accompanied by pain; and that his hernia immediately
followed the accident, and that his hernia did not exist prior to the
accident for which compensation is claimed.
In my opinion, Mr. Privette's hernia would have significantly affected
his ability to work from the time of his injury to the present.
Specifically, it would have limited his ability to lift any objects greater
than 10 lbs [sic], and would have prevented any pushing, pulling lifting,
bending, or stooping that involved strenuous exertion. He may have
been able to work under restricted duty conditions that would not require
any lifting> 10 lbs [sic], or any pushing, pulling, lifting, bending, or
stooping that could involve strenuous exertion (Ex. 10, page 1).
Dr. Spencer further added that Mr. Privette's hernia would continue to limit his ability to work
" ... until it is surgically repaired." !d.
Mr. Privette testified that in the spring of2014 he worked for his brother on several jobs for
cash. He testified that his brother gave him the cash in bank envelopes but he did not know any of
the dates PCON paid him cash. According to Larry Privette's affidavit, Mr. Privette worked for
other individuals during 2014 as well. PCON submitted a wage statement for Mr. Privette showing
that Mr. Privette only worked for PCON for eleven (11) weeks in 2014 and earned three thousand
3
nine-hundred thirty-eight dollars and eighty cents ($3, 93 8 .80). The wage statement included days in
which Mr. Privette worked after his injury. According to the wage statement, Mr. Privette worked
ten (1 0) weeks prior to the injury and earned three thousand four hundred and eighteen dollars and
thirty-five cents ($3,418.30). Mr. Privette's 2014 W-2 from PCON shows he earned three thousand
four hundred ninety-eight dollars ($3,498.00).
Mr. Privette's Petition for Benefit Determination (PBD) requested medical and temporary
disability benefits. The parties did not reach an agreement on the issues.
Mr. Privette's Contentions
Mr. Privette contends that he suffered a hernia at work on December 10, 2014, and that he
continues to suffer from related symptoms. He asserts that PCON should pay for his treatment at
Laughlin and with Dr. Spencer. Further, PCON should be required to pay for the surgery as
recommended by Dr. Spencer.
Mr. Privette requests temporary disability benefits from December 16, 2014, to the present.
He contends that he has not worked for anyone since December 15, 2014, the day his brother told
him that he no longer needed him.
Mr. Privette contends that the cash payments his brother made to him should be included in
his average weekly wage, but he acknowledges that he does not know when his brother paid him
cash.
PCON's Contentions
PCON asserts that Mr. Privette worked eleven (11) weeks for it in 2014. It asserts that Mr.
Privette worked for other individuals during 2014 as well. PCON contends that work continued on
the same project on which Mr. Privette alleges he was injured through May 2015. It avers that it did
not tell Mr. Privette it no longer needed him. Instead, PCON claims it told Mr. Privette it did not
need him the following week. It asserts that it could have provided light-duty work to Mr. Privette if
he had requested it.
Findings of Fact and Conclusions of Law
Standard Applied
The Workers' Compensation Law shall not be remedially or liberally construed in favor of
either party but shall be construed fairly, impartially and in accordance with basic principles of
statutory construction favoring neither the employee nor employer. Tenn. Code Ann. § 50-6-116
(20 14). At an expedited hearing, an employee need not prove every element of his or her claim by a
preponderance of the evidence in order to be eligible for benefits. McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk Comp App Bd LEXIS 6, *7-8, 9 (Tenn. Workers'
Comp. App. Bd. Mar. 27, 2015); cf McCall v. Nat'! Health Corp., 100 S.W.3d 209, 214 (Tenn.
2003). Instead, an employee must come forward with sufficient evidence from which the trial judge
4
could conclude that the employee is likely to prevail at a hearing on the merits. !d.
Factual Findings
The Court finds that Mr. Privette suffered a hernia while moving a sheet of plywood for
PCON. The Court finds that Mr. Privette has not worked since December 15, 2014. The Court
further finds that Mr. Privette has not worked for PCON because Larry Privette told him that he no
longer needed him. The Court finds that Mr. Privette needs surgery to repair the hernia.
Application of Law to Facts
The first issue is whether Mr. Privette suffered an injury that arose primarily out of and in the
course and scope of employment with PCON. An injury "arises primarily out of and in the course
and scope of employment" only if it has been shown by a preponderance of the evidence that the
employment contributed more than fifty percent (50%) in causing the injury, considering all causes.
Tenn. Code Ann. § 50-6-1 02(13)(B). For a hernia injury, an employee must also "definitely" prove
"to the satisfaction of the court" that:
(1) There was an injury resulting in hernia or rupture;
(2) The hernia or rupture appeared suddenly;
(3) It was accompanied by pain;
(4) The hernia or rupture immediately followed the accident; and
(5) The hernia or rupture did not exist prior to the accident for which
compensation is claimed.
Tenn. Code Ann. § 50-6-212(a) (2014).
Here, Dr. Spencer, the only expert to address causation, opined that Mr. Privette's hernia,
primarily arose out of and in the course and scope of employment and that the hernia satisfies each
requirement of the provisions ofTennessee Code Annotated section 50-6-212. Mr. Privette testified
that he suffered an injury lifting plywood at PCON and that the hernia appeared suddenly, and was
accompanied by pain, which he reported to his brother. He further testified that his girlfriend noticed
the hernia the following day. The medical records indicate that Mr. Privette did not have the hernia
prior to the accident in question. Mr. Privette has presented sufficient evidence to prove that his
hernia arose primarily out of and in the course and scope of his employment with PCON and is,
therefore, likely to succeed at a hearing on the merits.
The second issue is Mr. Privette's correct average weekly wage and compensation rate. The
parties presented opposing evidence and argument on this issue. Mr. Privette testified that PCON
paid him cash but did not include the cash payments on his 2014 W-2. Mr. Privette did not have
sufficient documentation to prove when he received the cash payments. Larry Privette, in his
affidavit, asserted that Mr. Privette worked for PCON eleven (11) weeks in 2014. There is no
evidence Mr. Privette worked for PCON in 2013. One of the eleven (11) weeks contains days Mr.
Privette worked after his injury, thus the Court did consider that week in its calculation. Neither Mr.
Privette nor PCON explained why Mr. Privette worked only during the weeks in question, other than
5
PCON's assertion that Mr. Privette worked for other individuals in 2014. There was no
documentation from either party showing whether Mr. Privette worked for PCON the last three
weeks of December 2013. PCON's numbers on the wage statement and W-2 form do not equate.
Typically, an employee's average weekly wages is determined by dividing an employee's
earnings for the fifty-two (52) weeks prior to the injury by fifty-two (52). Tenn. Code Ann. § 50-6-
102(3)(A) (2014). If an employee works less than fifty-two (52) weeks for an employer, the correct
way to determine an employee's average weekly wage is to divide the employee's earnings by the
number of weeks or parts of weeks the employee actually worked. Tenn. Code Ann. § 50-6-
102(3)(B) (2014). The Court finds that Mr. Privette was apart-time employeeofPCON in2014. He
worked for PCON and others. As a part-time employee, the Court will only consider the weeks Mr.
Privette worked for PCON in calculating his average weekly wage. McKinney v. Feldspar Corp.,
612 S.W.2d 157, 160 (Tenn. 1981). Mr. Privette earned three thousand four hundred eighteen
dollars and thirty cents ($3,418.30) during the ten (1 0) weeks he worked for PCON. Therefore, his
average weekly wage is three hundred forty-one dollars and eighty-three cents ($341.83), and his
compensation rate is two hundred twenty-seven dollars and eighty-nine cents ($227.89).
The third issue is whether Mr. Privette is entitled to past and future medical benefits. As
stated previously, Mr. Privette provided sufficient evidence to prove he is likely to succeed on the
merits. According to Tennessee Code Annotated section 50-6-204(a)(1)(A) (2014), an employer
must provide, free of charge to the employee, medical benefits made reasonably necessary by
accident. Larry Privette told Mr. Privette to seek medical care when he reported his injury. Mr.
Privette sought medical treatment at Laughlin Hospital and at ETSU physicians. PCON, or its
workers' compensation carrier, shall pay for all treatment associated with Mr. Privette's hernia injury
that he received at Laughlin and ETSU physicians as required by the Workers' Compensation Law.
PCON or its workers' compensation carrier shall also schedule and pay for the surgery made
reasonably necessary by his injury.
The final issue is whether Mr. Privette is entitled to past and future temporary disability
benefits. The temporary benefits in question are temporary partial disability (TPD) benefits because
Dr. Spencer opined that Mr. Privette could work with restrictions. TPD benefits are sixty-six and
two-thirds percent (66 2/3 %) of the difference between the average weekly wage of the worker at the
time ofthe injury and the wage the worker is able to earn in the worker's partially disabled condition.
Se~ Tenn. Code Ann. § 50-6-207(2) (2014).
Here, the question is whether PCON offered Mr. Privette light duty work after the accident or
told him not to come back to work. The Court finds Mr. Privette's testimony more persuasive than
Larry Privette's affidavit on this issue. The Court finds that Larry Privette told Mr. Privette that he
no longer needed him. This finding is confirmed by the fact that Larry Privette never called Mr.
Privette to offer him light duty work as Mr. Privette testified that he had not spoken to his brother
since January 5, 2015.
'
Since Mr. Privette has not worked since December 15, 2015, due to his injury, PCON must
pay him temporary partial disability benefits in the amount of six thousand four hundred thirteen
dollars and forty-eight cents ($6,413.48). This amount represents the period oftwenty-eight (28)
6
weeks and one (1) day from December 16, 2014, until June 30, 2015. TPD benefits cannot be
computed into the future. However, PCON or its carrier shall pay appropriate temporary partial or
temporary total disability benefits (once Mr. Privette has the hernia surgery) as they accrue.
IT IS, THEREFORE, ORDERED as follows:
1. PCON or its workers compensation carrier shall provide medical benefits according to
Tennessee Code Annotated section 50-6-204, including payment of all prior medical
treatment at Laughlin Hospital and ETSU Physicians, and shall schedule the hernia surgery
recommended by Dr. Spencer. Mr. Privette shall provide PCON or its workers'
compensation carrier copies of all medical bills.
2. The amount of temporary disability benefit is two hundred twenty-seven dollars and eighty-
nine cents ($227 .89) per week based on Mr. Privette's average weekly wage of three hundred
forty-one dollars and eighty-three cents ($341.83).
3. That PCON or its workers' compensation carrier shall pay Mr. Privette six thousand four
hundred thirteen dollars and forty-eight cents ($6,413 .48) in past temporary partial disability
benefits for the period from December 16, 2014, through June 30,2015, and shall continue to
pay appropriate temporary benefits as they accrue.
4. This matter is set for an Initial Hearing on August 26, 2015, at 2:00p.m. Eastern time
5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with this
Order must occur no later than seven (7) business days from the date of entry of this Order as
required by Tennessee Code Annotated section 50-6-239(d)(3) (2014). The Insurer or Self-
Insured Employer must submit confirmation of compliance with this Order to the Division by
email to \J ~ ompl iet 11<.:c.Pr Jg ramt~l !ll1 .gO \ no later than the seventh (7th) business day after
entry of this Order. Failure to submit the necessary confirmation within the period of
compliance may result in a penalty assessment for non-compliance.
6. For questions regarding compliance, please contact the Workers' Compensation Compliance
Unit via email W C omplia nce.Prob'l·amrZat n. gov or by calling (615) 253-1471 or (615) 532-
1309.
ENTERED this the 30th day of June 2015.
(;r-ce-~
BRIAN K. ADDINGTON
Workers' Compensation Judge
Jnitial Hearing:
7
An Initial Hearing has been set with Judge Brian K. Addington, Court of Workers'
Compensation Claims. You must call865-594-6538 or toll free at 855-543-5044 to participate in the
Initial Hearing.
Please Note: You must call in on August 26. 2015 . at 2:00 p.m. Eastern Time to
patiicipate. Failure to call in may result in a determination of the issues without your further
participation. All conferences are set using Eastern Time (ET).
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal
the decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven (7) business days of the date the
Expedited Hearing Order was entered by the Workers' Compensation Judge.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The parties, having the responsibility of ensuring a complete record on appeal, may request
from the Court Clerk the audio recording of the hearing for the purpose ofhaving a transcript
prepared by a licensed court reporter and filing it with the Court Clerk within ten (1 0)
calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the
parties may file a statement of the evidence within ten ( 10) calendar days of the filing of the
Expedited Hearing Notice of Appeal. The statement of the evidence must be approved by the
Judge before the record is submitted to the Clerk of the Appeals Board.
5. If the appellant elects to file a position statement in support of the interlocutory appeal, the
appealing party shall file such position statement with the Court Clerk within three (3)
business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues
presented for review and including any argument in support thereof. If the appellee elects to
file a response in opposition to the interlocutory appeal, appellee shall do so within three (3)
business days of the filing of the appellant's position statement.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the
following recipients by the following methods of service on this the 30th day of June, 2015.
Name Certified First Via Fax Via Mail/Email Address
Mail Class Fax Number Email
Vestal Privette X X 137 Union Church Road
Jonesborough, TN 37659
8
E. Harrison, Es .
PENNY SHRUM
CLERK OF THE COURT
WC.COURT.CLERK@tn.gov
9