The opinion
FILED
Feb 09, 2022
07:23 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
JOSE MENDEZ, ) Docket No.: 2018-02-0214
Employee, )
v. )
ESKOLA ROOFING, State File No.: 24741-2018
Employer, )
And )
AMERICAN CASUALTY ) Judge Brian K. Addington
COMPANY, )
Carrier. )
EXPEDITED HEARING ORDER
Mr. Mendez requested an expedited hearing seeking additional medical and
temporary disability benefits for his physical and mental injuries. Eskola Roofing asserted
that it met its obligation in providing medical benefits, and that Mr. Mendez was not
entitled to additional temporary benefits because of the presumption of maximum medical
improvement under Tennessee Code Annotated Section 50-6-207(1)(E). The Court held
an expedited hearing on February 4, 2022, and for the reasons below, denies Mr. Mendez’s
requests but allows him to return to the authorized treating physician.
History of Claim
Mr. Mendez fell from a roof at work and struck his head on April 2, 2018. His
primary injury was a cut on the head. He received authorized treatment at the emergency
room and, in the order listed, with Drs. Marilyn Bishop, occupational medicine provider;
Timothy Zajonc, ears, nose and throat specialist; and Kenneth Smith, neurosurgeon. Each
physician referred Mr. Mendez to the next specialty.
Dr. Smith eventually referred Mr. Mendez for neuropsychological testing. Instead,
Eskola provided an employer’s examination with psychiatrist Dr. J. Sidney Alexander on
July 24, 2020. He reviewed Mr. Mendez’s prior records, interviewed Mr. Mendez and his
wife, and performed a physical examination and testing. He concluded that Mr. Mendez
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had not experienced a psychiatric injury from the April 2, 2018 incident and should return
to work.
After the visit with Dr. Alexander, Mr. Mendez and his wife returned to Dr. Smith
on November 2. He reviewed Dr. Alexander’s report and repeated his referral for
neuropsychological evaluation and treatment. Dr. Smith stated that Mr. Mendez did not
need surgery or medications but had not attained maximum medical improvement.
The parties agreed that Mr. Mendez would see neuropsychologist Dr. Rachel Lacy.
However, due to the language barrier, Dr. Lacy wrote that she was unable to draw “any
solid conclusions of the claimant’s ability to work or what therapies he may need since the
data is not based on a full Spanish—written battery tests.” She determined that Mr. Mendez
was depressed and needed a psychiatrist or psychologist to treat it. She also determined
Mr. Mendez needed to be seen by a Spanish proficient neuropsychologist, Dr. John Sass.
The parties then arranged for Mr. Mendez to see Dr. Sass. The day before the
appointment, Mr. Mendez’s wife drove him to Georgia for it. However, during the drive,
he exited the vehicle at a stoplight and spent the night wandering the streets. His wife
found him the next morning and took him to the appointment, but he did not complete the
examination, so Dr. Sass was unable to write a report. Mr. Mendez explained that travel,
being confined in small places, anxiety over the testing, and his physical injuries accounted
for his actions the night before and his inability to continue the test.
Mr. Mendez and his wife testified that he needs additional medical benefits ̶
specifically, another neuropsychological examination, and a return to Dr. Smith for his
physical injuries. They testified that his head and neck continue to hurt, and that Dr. Smith
could not determine his work status or treatment plan until he undergoes the
neuropsychological testing. Further, they stated he is depressed, anxious, and angry.
Eskola asserted that Mr. Mendez did not have a reasonable explanation to stop the
testing, for which they had all been waiting. Further, it argued he is presumed to be at
maximum medical improvement because no current treatment is available for his physical
injuries.
Findings of Fact and Conclusions of Law
At an expedited hearing, Mr. Mendez must present sufficient evidence to show that
he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1)
(2021); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS
6, at *9 (Mar. 27, 2015).
Here, Mr. Mendez asserted that he is entitled to additional physical and
psychological treatment. He contended that his head and neck continue to hurt. Although
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the Court acknowledges his physical complaints, Dr. Smith, the authorized treating
physician, has not ordered additional treatment or medications. In fact, he stated they were
not needed when he last saw Mr. Mendez.
Concerning the neuropsychological treatment, Eskola attempted to provide
neuropsychological examinations by Dr. Lacy and Dr. Sass. Dr. Lacy’s examination, in
her own opinion, was inadequate; so, the Court gives it no weight. Mr. Mendez terminated
Mr. Sass’s examination before its conclusion.
However, the issue before the Court is not whether Mr. Mendez was justified in
terminating the neuropsychological examination, but what, if any, further examination or
treatment Dr. Smith believes he needs in view of what happened. Since valid
neuropsychological testing has not been completed and reviewed by Dr. Smith, the Court
will not order any specific medical benefits at this time, other than Mr. Mendez remains
entitled to any reasonable and necessary treatment Dr. Smith deems appropriate.
As for Mr. Mendez’s request for temporary total disability benefits, an injured
employee is conclusively presumed to be at maximum medical improvement when the
treating physician ends all active medical treatment, and the only care is for pain or a mental
injury that arose from the physical injury. See Tenn. Code Ann. § 50-6-207(1)(E). Mr.
Mendez is not receiving any active treatment from Dr. Smith for his physical injury;
therefore, he is conclusively presumed to be at maximum medical improvement and not
entitled to additional temporary total disability benefits.
In sum, Mr. Mendez has not provided sufficient evidence to show that he is likely
to prevail at a hearing on the merits for the requested medical and temporary total disability
benefits.
IT IS, THEREFORE, ORDERED, as follows:
1. Mr. Mendez’s request for temporary total disability benefits is denied at this
time.
2. The Court denies Mr. Mendez’s request for further neuropsychological
testing at this time. However, Mr. Mendez may return to the authorized treating
physician, Dr. Smith, for treatment and recommendations under Tennessee Code
Annotated Section 50-6-204.
3. This case is set for a status conference on April 6, 2022, at 10:00 a.m.
Eastern time. The parties shall call 855-543-5044 to participate.
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ENTERED FEBRUARY 9, 2022.
______________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Mr. Mendez’s Affidavit
2. Personnel File
3. Controlled Substance Test
4. Medical Records of Dr. Marilyn Bishop
5. Medical Records of Dr. Sydney Alexander
6. Medical Records of Dr. Ken Smith
7. Medical Records of Dr. Rachel Lacy, Psy.D.
8. Medical Records of Dr. Timothy Zajonc
9. Agreed Expedited Hearing Order
10. Emergency Medical Services record
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Hearing Request
4. Employee’s Motion to Compel Discovery
5. Discovery Order
6. Pre-Expedited Hearing Memorandum
7. Employer’s Witness and Exhibit List
8. Employer’s Pre-Hearing Statement
9. Employee’s Witness and Exhibit List
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CERTIFICATE OF SERVICE
I certify that a copy of this order was sent on February 9, 2022.
Name Certified Fax Email Service sent to:
Samuel Hall, X sam.hall.tn.law@gmail.com
Employee’s Attorney
Richard Clark, rclark@eraclides.com
Employer’s Attorney X jenniferdavis@eraclides.com
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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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
concerning 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/
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