Blevins, Keith v. 2Morrow's Total Home Maintenance

2019 TN WC 38
CourtTennessee Court of Workers' Compensation Claims
DecidedMarch 6, 2019
Docket2018-03-0420
StatusPublished

This text of 2019 TN WC 38 (Blevins, Keith v. 2Morrow's Total Home Maintenance) is published on Counsel Stack Legal Research, covering Tennessee Court of Workers' Compensation Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blevins, Keith v. 2Morrow's Total Home Maintenance, 2019 TN WC 38 (Tenn. Super. Ct. 2019).

Opinion

FILED Mar 06, 2019 09:25 AM(ET)

TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT KNOXVILLE KEITH ADAM BLEVINS, ) Docket No. 2018-03-0420 Employee, ) V. ) JASON AARON MORROW dba ) State File No. 25838-2018 2MORROW’S TOTAL HOME ) MAINTENANCE, ) Uninsured Employer. ) Judge Pamela B. Johnson

EXPEDITED HEARING ORDER GRANTING BENEFITS

This matter came before the Court for an Expedited Hearing on February 26, 2019. The Court must decide whether Mr. Blevins came forward with sufficient evidence demonstrating that his left ankle injury is compensable in light of Mr. Morrow’s intoxication and drug use defense. For the reasons below, the Court holds Mr. Blevins met his burden and grants the requested benefits.

History of Claim

For purposes of the Expedited Hearing, the parties stipulated to the following: An employment relationship existed between Mr. Blevins and Mr. Morrow when Mr. Blevins injured his left ankle during the course and scope of his employment on December 14, 2017. Mr. Morrow asserted an intoxication and drug use defense but agreed he was not a member of the Drug-Free Workplace Program.

The parties disputed Mr. Blevins’ average weekly wage. Mr. Morrow employed Mr. Blevins as a laborer and paid him in cash. Mr. Blevins testified he earned $10 per hour and, on average, he worked thirty hours per week. Occasionally, he earned $8 per hour on “filler jobs.” He estimated that in the thirteen weeks between his hire date and injury, he worked about three weeks in filler jobs.

In contrast, Mr. Morrow testified that ninety percent of the time he paid Mr. Blevins $8 per hour and only occasionally paid him $10 per hour. In a text exchange

1 between Mr. Blevins and Mr. Morrow, Mr. Blevins asked Mr. Morrow if he had taken money out of his check. Mr. Morrow responded, “No. This is a filler job and pays $2 less per hr. . . It’s just to keep you guys busy between big jobs.”

Mr. Morrow stated he had no recollection and kept no records concerning the hourly pay rate per week but recorded the hours worked per day in a calendar. Mr. Morrow’s calendar contained Mr. Blevins’ name and the hours he worked on ten of the thirteen weeks before his injury. Mr. Blevins’ “recorded” hours in those ten weeks totaled 192.

The parties additionally disputed whether Mr. Blevins’ injuries were due to intoxication or drug use. Before the injury, Mr. Blevins suffered from chronic back pain. He was under the care of Dr. David Coffey, who prescribed 7.5 milligrams of hydrocodone four times per day. Mr. Blevins testified that some days his pain was worse than others but he always had pain. On the worst days, he might take more than four doses, so his pill counts were short at his next office visit. Dr. Coffey’s records indicated multiple occasions of abnormal pill counts and abnormal urine drug screens.

Mr. Blevins indicated the pain medication had no effect on his ability to walk, balance, or pick things up. He stated that he took the medication daily and was told by Dr. Coffey he could work while taking hydrocodone. He also stated that Mr. Morrow knew about his chronic pain and use of pain medication.

Mr. Morrow denied that he knew Mr. Blevins was taking pain medication. He stated that he knew Mr. Blevins was on “drugs” before, and when he hired him, he asked Mr. Blevins whether he was on drugs or clean. He testified that Mr. Blevins told him he was clean. He indicated that, had he known Mr. Blevins was using pain medication, he would not have allowed Mr. Blevins on the jobsite. Mr. Morrow testified that he has thrown employees off the job site in the past for intoxication or drug use. He admitted that he did not observe Mr. Blevins working intoxicated or under the influence of drugs.

On the injury date, Mr. Blevins took his first dose of hydrocodone as usual and left for a roofing job. While working on the roof, Mr. Blevins grabbed two heavy bundles of shingles and turned to go up a steep roof when he felt pain in his left ankle. Afterward, Mr. Morrow drove Mr. Blevins to Big South Fork Medical Center (BSFMC), where x- rays showed a left-ankle fracture. Due to BSFMC’s limited services, Mr. Blevins was sent to Methodist Medical Center (MMC) for an orthopedic consultation. At MMC, the attending physician diagnosed not one, but two, fractures in his left ankle and lower leg and referred him to an orthopedic surgeon.

A few days later, Mr. Blevins saw Dr. Jean Francois Reat, who performed surgery. Following surgery, Dr. Reat continued to treat Mr. Blevins’ ankle and kept him off work until February 19, 2018, a period of nine weeks and four days.

2 After Mr. Blevins returned to work, he developed pain, stiffness, and swelling in his left ankle. He returned to Dr. Reat, who referred him to Dr. Tracy Pesut. Dr. Pesut took him off work on April 5 and recommended another surgery. After the second surgery, Dr. Pesut kept him off work until August 9, an additional eighteen weeks.

Over the course of his treatment, Mr. Blevins incurred expenses at Tennessee Orthopedic Clinic of $17,593.00; at Methodist Medical Center of $15,009.10; and at Parkwest Medical Center of $13,650.92. ! His medical charges totaled $46,253.02.

At the Expedited Hearing, Mr. Blevins asked the Court to order payment of his medical expenses and to order Mr. Morrow to provide ongoing medical treatment with Dr. Pesut as the authorized treating physician. He further asked the Court to award temporary total disability benefits for twenty-seven weeks and four days. He argued, based on thirty hours per week, his average weekly wage was $286.15 and _ his compensation rate was $190.80.

Mr. Blevins also argued that Mr. Morrow failed to meet its burden of showing that his injury was proximately caused by intoxication or drug use. None of the medical records demonstrated he was intoxicated or under the influence of drugs at the time of the injury. He contended that no evidence suggests the hydrocodone had any effect on his injury. Additionally, he argued Mr. Morrow admitted that he did not observe Mr. Blevins intoxicated or under the influence of drugs and testified that he would not have allowed him to remain on the job if he had.

Mr. Morrow argued that the medical records demonstrated a history of abnormal urine drug screens and abnormal pill counts. On the date of injury, Mr. Blevins admitted that he took hydrocodone before work, and the injury happened shortly after he started working on the job site. Mr. Morrow asked the Court to deny Mr. Blevins’ request for benefits because his injury was proximately caused by his intoxication or drug use. In the event the Court awards benefits to Mr. Blevins, Mr. Morrow argued that Mr. Blevins would be entitled to the minimum weekly compensation rate of $135.20.

Findings of Fact and Conclusions of Law

To prove a compensable injury, Mr. Blevins must show his left ankle injury arose primarily out of and in the course and scope of his employment. However, he need not prove every element of his defense by a preponderance of the evidence to succeed at an Expedited Hearing. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Instead, he must present sufficient

' Mr. Blevins did not submit bills regarding his treatment at BSFMC or include the amount charged by BSFMC in his medical bill summary. evidence from which this Court might determine he is likely to prevail at a hearing on the merits. /d.

Mr. Morrow contended that Tennessee Code Annotated section 50-6-110(a)(3) bars Mr. Blevins’ claim because he was intoxicated or under the influence of drugs at the time of the injury.

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Bluebook (online)
2019 TN WC 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blevins-keith-v-2morrows-total-home-maintenance-tennworkcompcl-2019.