The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
LISA MILLSAPS, ) Docket No. 2020-05-0636
Employee, )
v. )
)
LUIS ARELLANO d/b/a/ ) State File No. 39889-2020
LOS ALAMOS RESTAURANT )
Uninsured Employer. ) Judge Dale Tipps
)
EXPEDITED HEARING ORDER GRANTING BENEFITS
This case came before the Court on January 26, 2021, for an Expedited Hearing on
whether Ms. Millsaps is entitled to medical and temporary disability benefits.!_ Ms.
Millsaps claimed she suffered a broken hip while working for Mr. Arellano, the owner of
Los Alamos Restaurant. For the reasons below, the Court holds that Ms. Millsaps is likely
to prevail at a hearing on the merits that she is entitled to medical treatment and temporary
disability benefits. However, she has not shown at this time that she is entitled to payment
of her medical bills.
History of Claim
Ms. Millsaps testified she began working at Los Alamos as a server on May 23,
2020. Near the end of her first shift, she slipped and fell on her way to make a customer’s
drink. Ms. Millsaps could not get up, so co-workers called an ambulance. The EMTs took
her to Southern Tennessee Medical Center, where she was diagnosed with a hip and femur
fracture. The Medical Center transferred Ms. Millsaps to Erlanger Hospital, where the
fracture was surgically repaired.
After surgery, Ms. Millsaps stayed in the trauma center for nine days. She has
required a walker since then and has been unable to work. Ms. Millsaps cannot afford the
additional treatment and therapy recommended by her doctor because her claim was denied
' The hearing was scheduled to be conducted by videoconference, but Mr. Arellano was unable to sign in.
Instead, by agreement of the parties, he appeared by phone.
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and she has no insurance. She therefore filed a Petition for Benefit Determination on June
29, 2020, noting that Mr. Arellano was uninsured.
Mr. Arellano admitted Ms. Millsaps was his employee and that she was to receive
minimum wage during her training period.” He also acknowledged he had no workers’
compensation insurance at the time of the accident. However, Mr. Arellano contended the
accident was not compensable for several reasons. First, Ms. Millsaps should not have
been behind the bar to get a customer’s drink because she was still training. Next, she
should have been wearing non-slip shoes. In addition, he believed Ms. Millsaps had
smoked marijuana during her break, and she refused a requested drug screen at the hospital.
Mr. Arellano noted that Ms. Millsaps had a serious car accident in 2016 and walked
with a limp. He believed that her hip was damaged or weakened by that accident, and he
argued he should not be responsible for any aggravation or new injury to these pre-existing
conditions. Further, Mr. Arellano also questioned whether the injury occurred as Ms.
Millsaps described because she was lying in a different area when he was called to the
restaurant after the accident, and none of the customers or coworkers actually heard or saw
her fall. He suggested she staged this accident to obtain additional medical treatment for
her previous injuries.
The only medical records Ms. Millsaps introduced into evidence were a single
treatment record from Southern Tennessee Medical Center and five medical bills.7 The
Medical Center record showed the emergency department treated her on March 23 for a
hip injury caused by a workplace fall. It also stated Ms. Millsaps was unable to walk after
the injury.
Findings of Fact and Conclusions of Law
For the Court to grant Ms. Millsaps’s request, she must prove she 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, Ms. Millsaps must show that her alleged
injuries arose primarily out of and in the course and scope of her employment. This
normally includes the requirement that she 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.
* Current federal minimum wage is $7.25. At forty hours per week, this yields an average weekly wage of
$290.00 and a compensation rate of $193.33.
3Mr. Arellano claimed to have additional records that he wanted to offer as proof, but he did not file them
with the Court before the hearing. The Court denied his request for a continuance to file those records
because he did not make it in advance of the hearing and he did not participate in the pre-hearing conference
on January 6. Mr. Arellano also objected to the medical record and bills. The Court overruled the objection,
as he was unable to articulate a legal ground for excluding them.
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§ 50-6-102(14). However, medical evidence is not required to establish a causal
relationship, “in the most obvious, simple and routine cases.” Cloyd v. Hartco Flooring
Co., 274 S.W.3d 638, 643 (Tenn. 2008) (quoting Orman vy. Williams Sonoma, Inc., 803
S.W.2d 672, 676 (Tenn. 1991)).
First, the Court finds that Ms. Millsaps proved she slipped and fell on May 23.
Therefore, the Court holds she is likely to show a specific incident, identifiable by time and
place, at trial. Although Ms. Millsaps did not provide a medical opinion as to the cause of
her injury, her case is sufficiently “obvious, simple and routine” for the Court to find she
is likely to prevail on the merits. It is undisputed that Ms. Millsaps was transported to the
hospital, where she received extensive medical treatment for a broken hip. This is
consistent with her testimony that she injured her hip when she fell and was unable to stand
or walk. Thus, she appears likely to prove a compensable injury.
Mr. Arellano’s defenses are unpersuasive. Even if he were to show that Ms.
Millsaps should not have been behind the bar or that she was wearing improper shoes, the
affirmative defense of willful misconduct requires him to prove: (1) the employee’s actual,
as opposed to constructive, notice of the rule; (2) the employee’s understanding of the
danger involved in violating the rule; (3) the employer’s bona fide enforcement of the rule;
and, (4) the employee’s lack of a valid excuse for violating the rule. Mitchell v. Fayetteville
Pub. Utilities, 368 S.W.3d 442, 453 (Tenn. 2012). Mr. Arellano did not present this proof.
Similarly, Mr. Arellano failed to present any proof that Ms. Millsaps had used
marijuana, that she was intoxicated or impaired, or that her accident was the result of any
impairment. See Woodard v. Freeman Expositions, LLC, 2020 TN Wrk. Comp. App. Bd.
LEXIS 15, at *4-5 (Apr. 3, 2020) (an employer must present evidence that an employee's
alleged illegal drug use was the proximate cause of her injuries).
Finally, Mr. Arellano’s argument that Ms. Millsaps’s current condition is somehow
related to her 2016 accident is unsupported by any medical proof, and neither Mr. Arellano
nor the Court are qualified to make that medical determination. Further, his assertion that
Ms. Millsaps staged this incident or is using it to obtain additional treatment for a
preexisting condition is belied by the facts of the case. Ms. Millsaps suffered a broken hip,
a serious and debilitating condition. The suggestion that she worked a full shift as a server
with a broken hip (that required surgical repair) before staging this accident borders on the
absurd.
Medical Benefits
Having found Ms. Millsaps is likely to prevail in proving a work-related injury, the
Court turns to her 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
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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
need for medical care,” the employer must provide a medical panel from which the
employee may select the treating physician. Here, Mr. Arellano did not do so, and Ms.
Millsaps was forced to seek treatment on her own. The Court holds Ms. Millsaps provided
sufficient evidence to show that she is entitled to a panel of physicians. Mr. Arellano shall
provide a panel from which Ms. Millsaps may choose an authorized physician for
treatment.
Ms. Millsaps requested payment of the medical bills admitted into evidence.
Because of this, she has the burden of demonstrating that any treatment not authorized by
the employer is reasonable and medically necessary.”. McClendon v. Food Lion, LLC, No.
E2013-00380-WC-R3-WC, 2014 Tenn. LEXIS 518, at *8 (Tenn. Workers’ Comp. Panel
July 11, 2014). The Court cannot order payment of those bills at this time because it has
no expert proof of the reasonableness and necessity of her treatment. This does not prevent
Ms. Millsaps from presenting the requisite proof at a later hearing.
Temporary Disability Benefits
Ms. Millsaps also requested temporary disability benefits. To receive temporary
total disability (TTD) benefits, she must prove (1) she became disabled from working due
to a compensable injury; (2) a causal connection between her injury and her inability to
work; and (3) her period of disability. or temporary partial disability benefits, Ms.
Millsaps must show that her treating physician returned her to work with restrictions that
Mr. Arellano 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).
Ms. Millsaps testified that she was in a rehabilitation facility for nine days after her
surgery. The Court accepts this as proof that she was unable to work during that time
because of her work injury. Tennessee Code Annotated section 50-6-205(a) provides that
no compensation shall be allowed for the first seven days of disability. Consequently, the
only TTD benefits the Court can order at this time are for the last two days of this period.
It appears very likely that Ms. Millsaps had a lengthy period of temporary disability,
but she presented no medical proof as to how long her physicians took her completely off
work or assigned restrictions because of her injury. The Court cannot guess or estimate
the time she was disabled or restricted from working but must have medical proof before
it can order additional temporary disability benefits.
Finally, concerning payment of benefits, Mr. Arellano 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.)
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Ms. Millsaps must show that she: 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. Arellano for the injury.
Tenn. Code Ann. § 50-6-801(d)(1)-(5).
The Court finds that Ms. Millsaps worked for an uninsured employer, Luis Arellano,
and that she is likely to prevail at a hearing on the merits that she suffered an injury arising
primarily from employment on May 23, 2020. She was a Tennessee resident on that date,
and she provided notice to the Bureau of her injury and Mr. Arellano’s lack of insurance
within sixty days. This order serves as a judgment for benefits. Therefore, Ms. Millsaps
satisfied all the requirements of section 50-6-801(d).
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Arellano shall provide Ms. Millsaps with a panel of physicians and medical
treatment made reasonably necessary by her May 23, 2020 injury under Tennessee
Code Annotated section 50-6-204.
2. Mr. Arellano shall pay Ms. Millsaps temporary total disability benefits in the
amount of $55.24 for two of the days she spent in the rehabilitation facility.
3. Ms. Millsaps 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. To do so, she must complete and
file the attached form.
4. This case is set for a Status Hearing on April 14, 2021, at 9:30 a.m. Please call toll-
free at 855-874-0473 to participate. Failure to call might result in a determination
of the issues without your further participation. All conferences are set using
Central Time.
5. 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 February 4, 2021.
CZLE” 2
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Affidavit of Lisa Millsaps
2. Notarized Investigative Report
3. Medical Record and Bills
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
February 4, 2021.
Name Certified Fax |Email | Service sent to:
Lisa Millsaps xX Lisamillsaps83 @ gmail.com
Luis Arellano xX louivalentino @ gmail.com
Amanda Terry xX Amanda.Terry @tn.gov
LaShawn Pender xX lashawn.pender @tn. gov
fj /
ya Gon yaa dh
Penny Shriim, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk @ th.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/
wce.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 O Motion Order filed on
0 Compensation Order filed on C1 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): fo 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 lof 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 | 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]
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