The opinion
FILED
Apr 17, 2024
09:16 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
FRANCISCO BELLO TOLEDO, ) Docket No. 2023-06-1942
Employee, )
v. )
)
GENUINE PARTS CO., ) State File No. 5274-2023
Employer, )
And )
)
SAFETY NATIONAL CASUALTY ) Judge Joshua D. Baker
CO., )
Carrier. )
EXPEDITED HEARING ORDER
At an April 4, 2024 expedited hearing, Mr. Bello Toledo sought benefits for “pain
and suffering,” lost wages, and money to treat a back injury allegedly arising from a
collision between two cherry pickers at work. For the reasons below, the Court denies his
request.
Claim History
Mr. Bello Toledo was operating a cherry picker at Genuine Parts on January 16,
2023, when another cherry picker collided with his, jarring his back. When he complained
of back and neck pain, the safety manager scheduled an appointment with a nurse
practitioner, who ordered x-rays. The x-rays were normal except for an “area of concern
along the base of his thoracic spine,” deemed “likely chronic” rather than from acute
trauma.
Ten days after the injury, the safety manager scheduled an appointment for Mr.
Bello Toledo directly with orthopedist Dr. Joseph Blythe. Dr. Blythe recommended
physical therapy, offered an injection that Mr. Bello Toledo declined, and set a follow-up
appointment.
However, when Mr. Bello Toledo returned for his follow-up, he said Dr. Blythe’s
staff rescheduled his appointment for being late. Because he felt his treatment could not
wait, he went to the emergency room, where he received medication and a referral to an
orthopedist.
Mr. Bello Toledo went to see Dr. Eric Neff, who also recommended physical
therapy, which Mr. Bello Toledo completed. Genuine Parts paid for all medical treatment,
including the unauthorized emergency room visit, physical therapy, and treatment with Dr.
Neff.
Two months after the injury, Genuine Parts offered a panel of physicians, and Mr.
Bello Toledo chose a spine specialist even though he wished to only continue seeing Dr.
Neff. So Genuine Parts did not schedule an appointment and declined to pay for any further
medical care.
Two months later, Dr. Neff signed a Final Medical Report stating Mr. Bello Toledo
had zero impairment, and he anticipated the injury would not require additional medical
care.
At the expedited hearing, Mr. Bello Toledo complained he had received only about
60% of his pay when unable to work. He requested the remainder of his lost wages, money
to treat on his own, and compensation for “pain and suffering.”
Findings of Fact and Conclusions of Law
To receive benefits at an expedited hearing, Mr. Bello Toledo must prove he would
likely prevail at a final hearing. McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Genuine Parts contended that Mr.
Bello Toledo is unlikely to prevail at a final hearing in proving a compensable injury.1
To prove a compensable injury, an employee must show “to a reasonable degree of
medical certainty that [the work accident] contributed more than fifty percent (50%) in
causing the . . . disablement or need for medical treatment, considering all causes.” Tenn.
Code Ann. § 50-6-102(12)(A)-(D) (2023). Unless a cause is obvious, an “employee must
present expert medical proof that the alleged injury is causally related to the employment.”
Berdnik v. Fairfield Glade Com’ty Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at *11
(May 18, 2017).
A back injury’s cause is not obvious, as they occur in numerous ways and for
diverse, complicated reasons. Yet Mr. Bello Toledo produced no expert evidence showing
his back condition is causally related to his work accident or even that further treatment is
required. For this reason, the Court denies his request for benefits.
1
Genuine Parts moved for dismissal under Tennessee Rule of Civil Procedure 41.02(2) (2023). However,
this decision makes that motion moot. At an interlocutory stage, granting a Rule 41.02 motion operates only
to deny interlocutory benefits without dismissing the claim. Carrillo v. Hurtado, 2023 TN Wrk. Comp.
App. Bd. LEXIS 40, at *10 (Aug. 16, 2023). Because benefits are denied, the outcome is the same.
Even if Mr. Bello Toledo had produced expert proof that he his injury arose
primarily from his employment and requires additional treatment, the Court has no
authority to award the relief he requested, including compensation for “pain and suffering,”
money for more treatment, or his full pay as opposed to temporary disability benefits,
which is “sixty-six and two-thirds percent (66 ⅔%) of [his] average weekly wages[.]”
Tenn. Code Ann. § 50-6-207.
Rather, the Workers’ Compensation Law requires an employer to “furnish, free of
charge to the employee, such medical and surgical treatment . . . made reasonably necessary
by accident[.]” Id. at -204(a)(1)(A).
To a degree, Genuine Parts satisfied this requirement, as it paid for medical
treatment. On the other hand, Genuine Parts ignored its legal obligation to offer Mr. Bello
Toledo a choice of physicians within three days from when he notified his safety manager
of his injury and expressed a need for medical care. Tenn. Comp. R. & Regs. 0800-02-01-
.06(1) (2018). Instead, it directed him to a nurse practitioner and then to Dr. Blythe, leaving
him without a choice of physician. Although permissible, directing an injured worker to
“employer-sponsored medical providers . . . does not satisfy nor alleviate the requirement
for providing an appropriate panel within the three (3) business days.” Id. at -.06(4).
Genuine Parts offered a panel only after two months and did so disingenuously, as
Mr. Bello Toledo testified that he never received an appointment with his panel-selected
physician. Therefore, the Court refers Genuine Parts to the Compliance Program of the
Bureau of Workers’ Compensation for appropriate action based on its failure to timely
offer a panel of physicians, as required by the Workers’ Compensation Law.
It is ORDERED as follows:
1. Mr. Bello Toledo’s request for benefits is denied at this time for lack of proof.
2. The Court refers Genuine Parts to the Compliance Program of the Bureau of
Workers’ Compensation for appropriate action, if any, based on its failure to provide
a panel of physicians within three days as required by Tennessee Compilation Rules
and Regulations 0800-02-01-.06(1).
3. The Court sets a status hearing for Monday, June 3, 2024, at 10:30 a.m. Central
Time. The parties must call (615) 741-2113 or (855) 874-0474. Failure to call might
result in a determination of the issues without the party’s participation.
ENTERED April 17, 2024.
______________________________________
JOSHUA D. BAKER, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Medical Records
2. Rule 72 Declaration of Francisco Bell Toledo (excluding hearsay statements
concerning diagnosis and treatment)
3. GPC Return to Work form dated May 1, 2023
4. Final Medical Report
5. List of Claim Payments
6. Panel
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Show Cause Order entered October 10, 2023
5. Show Cause Order entered November 7, 2023
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as shown on April 17, 2024.
Name Certified Email Service sent to:
Francisco Bello X bello2373@yahoo.com
Toledo,
Self-represented
Employee
Nick Lastra, X nalastra@mijs.com
Employer’s Attorney nowens@mijs.com
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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 *
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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]
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