The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Leonardo Calderon-Fuentes, ) Docket No. 2018-06-1735
Employee, )
V. )
CEVA Logistics U.S. Holdings, ) State File No. 58665-2018
Employer, )
And )
New Hampshire Ins. Co., ) Judge Kenneth M. Switzer
Carrier. )
COMPENSATION ORDER
This case came before the Court on December 2, 2020, for a compensation hearing.
CEVA Logistics moved for involuntary dismissal of the case after Leonardo Calderon-
Fuentes testified regarding an injury he suffered while working. CEVA cited a lack of
medical proof showing that the injury arose primarily out of employment. The Court
agrees and for the reasons below, grants the motion.
Claim History
Mr. Calderon-Fuentes drove a forklift at work on July 25, 2018, and he testified he
collided with another forklift driven by a coworker. They called a supervisor to report the
accident.
A few days later, Mr. Calderon-Fuentes asked to see a doctor. CEVA authorized
treatment at an occupational clinic until it denied the claim on August 13. Afterward, he
treated on his own.
For medical proof, Mr. Calderon-Fuentes provided records from three visits to the
occupational clinic and work excuses. Records from the first visit state that the accident
happened at work on July 25 and he “was on forklift was hit by another forklift.” However,
no provider stated that the injury arose primarily out of employment or words to that effect.
Aside from introducing “Return to Work” forms excusing him from work, Mr. Calderon-
]
Fuentes did not introduce any other medical records. Importantly, his medical proof did
not include either a physician’s deposition or a Form C-32 in lieu of deposition.
Findings of Fact and Conclusions of Law
At a compensation hearing, Mr. Calderon-Fuentes must show he suffered an injury
as it is defined in the Workers’ Compensation Law. The law defines an accidental injury
as one “caused by a specific incident .. . arising primarily out of and in the course and
scope of employment, and is identifiable by time and place of occurrence[.]” Further, he
must prove through an expert medical opinion that the work-related incident more likely
than not contributed more than fifty percent in causing the injury. See Tenn. Code Ann. §
50-6-102(14)(A)-(C) (2019).
Here, Mr. Calderon-Fuentes credibly testified that on July 25, 2018, he was driving
a forklift at work when another forklift collided with his, causing his injury. This account
of his injury is documented in the medical records. Therefore, the Court finds he proved a
specific incident arising in the course and scope of employment.
However, that does not end the inquiry. Mr. Calderon-Fuentes must also prove with
medical testimony that his injury primarily arose out of his employment. It is on this basis
that CEVA moved for an involuntary dismissal.”! Specifically, it argued that Mr.
Calderon-Fuentes did not offer an opinion from a medical expert that his injury arose
primarily out of employment, so he is not entitled to his requested relief. CEVA is correct.
The medical proof is insufficient. The clinic notes do not state that Mr. Calderon-
Fuentes’s injury arose “primarily out of employment” or use similar words relating the
injury to work. He also did not present a physician’s opinion on Form C-32 or by
deposition testimony linking the injury to work. See Tenn. Code Ann. § 50-6-235(c)(1).
In sum, the Court agrees with CEVA that no medical expert gave the opinion that Mr.
Calderon-Fuentes’s injury arose primarily out of and in the course and scope of his
employment at CEVA. He has not shown a right to relief.2 Although the result likely
strikes him as harsh, given the facts and law, the Court must grant the motion to dismiss.
1 A party may seek an involuntary dismissal after the plaintiff has presented his case “on the ground that
upon the facts and law the plaintiff has shown no right to relief.” Tenn. R. Civ. P. 41.02(2) (2020).
2Mr. Calderon-Fuentes moved for a continuance to obtain additional proof. CEVA opposed it, arguing that
he had sufficient time to obtain his evidence over the past two and one-half years. The Court agreed. In
the July 20, 2020 status hearing, the Court explained that Mr. Calderon-Fuentes needed additional medical
proof, in the form of either a Form C-32 or deposition transcript. The Court gave him a deadline, which
he did not meet. See T.R. 4, 5.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1.
2.
Mr. Calderon-Fuentes’s claim is dismissed with prejudice to its refiling.
Costs of $150.00 are assessed against CEVA under Tennessee Compilation Rules
and Regulations 0800-02-21-.07 (August, 2019), for which execution might issue
as necessaty.
CEVA shall file a completed Form SD-2 within five days after this order becomes
final.
Unless appealed, the order shall become final thirty days after issuance.
ENTERED December 4, 2020.
JUDGE KENNETH M. SWITZ
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1.
AWB WY
Affidavit of Mr. Calderon-Fuentes
First Report of Injury
Panel
Wage statement and post-injury wages
Notice of Denial
Medical Records
Technical Record:
NAURWN
Petition for Benefit Determination
Dispute Certification Notice, April 17, 2019
Expedited Hearing Order
Order on Status Hearing, July 20, 2020?
Order on Status Hearing, October 5, 2020
Dispute Certification Notice, November 18, 2020, and Employer’s list of issues
Employer’s Prehearing Statement
3 The Court added this pleading to the Technical Record after the compensation hearing.
3
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on December 4, 2020.
Name Certified | Email | Service sent to:
Leonardo Calderon- Xx 320 Welch Rd., Apt. G3
Fuentes, Self- Nashville TN 37211
represented
Employee
Tyler Smith, Xx tsmith@lewisthomason.com
Employer’s attorney reorrigan@lewisthomason.com
Penny Shrum
WC.CourtClerk@tn.gov
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
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):
0 Expedited Hearing Order filed on XO Motion Order filed on
1 Compensation Order filed on XO 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
l, , 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