TBWC Decisions: Week of November 9-13, 2015

BY:  Allen Callison

Appeals Board Order

Joseph Willis v. All Staff

Docket: 2014-05-0005

Judge: Marshall Davidson       

Claimant’s Counsel: Gene Hallworth

Employer/Carrier’s Counsel: Duane Willis

Briefly: Appeals Board reversed the Trial Court’s award of medical and indemnity benefits.  Chiefly, the Appeals Board found that the Trial Court failed to utilize the new standard of compensability, i.e. “primarily arising out of.” 

Summary:.  The Trial Court found that the Claimant’s dislocated patella primarily arose out of his employment, thereby awarding indemnity and medical benefits to the Claimant.  However, the Appeals Board reversed, focusing on the deposition testimony of the treating physician, Dr. David Moore.  Dr. Moore testified that the Claimant was rising from a squatted position and that the Claimant was not lifting anything that put additional pressure on the knee.  Further, Dr. Moore testified that the Claimant’s fatigue was a “contributing factor” and it was “certainly possible” that muscle fatigue contributed to the dislocated patella. The Appeals Board focused on the fact that Dr. Moore never stated with certainty that the Claimant’s employment primarily caused the at-work injury, but instead said “possibly” and “could be”, which were only appropriate under the old standard. Therefore, the Trial Court’s award of benefits was reversed.

Compensation Hearing Order

Gaynell Portilla v. Tyson Foods, Inc.

Docket: 2015-06-0024

Judge: Josh Baker      

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Terry Hill


Briefly: Claimant fell at the top of a landing.  There were no known risk factors such as water on the floor.  The Court agreed that the fall was idiopathic and not caused by a risk of employment.

Summary: The Claimant fell while on a flat landing while ascending a flight of stairs.  Surveillance video revealed that she was climbing the stairs and her feet became tangled, causing her fall backwards onto the floor.  Additionally, the video showed other individuals walking in the same place as the Claimant, but having no difficulty keeping their footing.  Finally, the Court credited the Employer’s witnesses who testified that they examined the floor and verified that there was nothing on the floor that could have caused the injury.  Therefore, benefits were denied as the fall was deemed idiopathic.

Expedited Appeals Board Order

Katherine Perrault v. Gem Care, Inc.

Docket: 2015-02-0210

Judge: Tim Conner

Claimant’s Counsel: William Evans

Employer/Carrier’s Counsel: Joe Lynch

Briefly: Claimant appealed a denial of benefits for a hiatal hernia, appendicitis, and hemorrhoids, but the Appeals Board affirmed the denial of benefits, stating that the Claimant had failed to produce evidence that she met the requisite criteria for a compensable hernia.  Furthermore, the Claimant failed to produce any evidence whatsoever that she experienced a compensable injury. 

Summary: The Claimant worked for a temp service company and was assigned to a factory lifting heavy objects.  She testified that she felt a sudden onset of chest pain while lifting a metal cast.  She sought treatment the following day for rectal bleeding and vomiting, but the notes from the providers indicated that these were preexisting issues.  The Trial Court further found that the Claimant had not testified that she met the requisite qualifications for a compensable hernia.  Therefore, the denial of benefits was affirmed.   

Expedited Hearing Orders

Sharon Glover v. Vanderbilt Medical Center

Docket: 2015-06-0165

Judge: Robert Durham

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Nathan Cherry

Briefly: Claimant sought an order for Employer to pay for unauthorized chiropractic bills.  However, the Trial Court denied the request, stating that the Claimant had failed to establish a compensable injury or that the chiropractic care was reasonable and necessary. 

Summary: The Claimant slipped and fell at work and selected Vanderbilt Occupational Health Clinic as her ATP.  She was seen two times before being released to regular duty.  However, three months later, she sought medical treatment through a chiropractor and continued to treat with him for nearly 7 months.  While treating with the chiropractor, she asked Vanderbilt to authorize treatment, but was specifically told that no further treatment would be authorized. Therefore, the Court found that Dr. Crist could become the authorized treating physician under certain circumstances, but that the Claimant had not established the compensability of her injury or the reasonableness of the chiropractic care.  Therefore, the request was denied. . 

Thomas Hutchins, Jr. v. Rocky Top Coatings

Docket: 2015-03-0385

Judge: Lisa Knott

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Edward Babb

Briefly: Employer denied it was responsible for carrying workers’ compensation coverage, but the Court found that it qualified as a construction services provider obligated to provide coverage for all employees.  However, the Court found that the Claimant had failed to present evidence that the injury arose out of the employment.     

Summary: The Employer is a small business consisting of the owner and two employees and it did not carry workers’ compensation insurance on the basis that it did not have five employees.  However, the Trial Court focused on the fact that construction services providers are obligated to carry insurance regardless of the number of employees. With respect to the eye injury, the Claimant testified that he was pressure washing and a piece of concrete went under his safety glasses and into his eye.  However, a coworker testified that the Claimant did not complain of any issues on the day of the accident and only began complaining of pain the following day.  Additionally, the Employer testified that the Claimant told him that a blade of grass must have gotten into his eye while weed-eating.  The Court found that the Claimant had failed to carry his burden of proof and establish that the injury arose out of the pressure washing event. 

Ricky Miller v. Metaltek, Inc.

Docket: 2015-01-0236

Judge: Tom Wyatt

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Barrett Albritton

Briefly:. The sole issue was whether the Claimant was entitled to TTD/TPD benefits after he was terminated while working on a light duty assignment.  The Court found that he was terminated for misconduct and, therefore, not eligible for TTD/TPD.  

Summary: The Claimant sustained a compensable injury and was released with light duty restrictions by the ATP.  The Employer accommodated the restrictions for a period of time, but terminated him based upon a number of violations that ranged from wrongful use of company property to safety violations.  The Claimant did not deny that the events occurred, but stated that his supervisor was merely finding fault in everything he did.  The Court, however, found that the Employer was likely to prevail at the hearing that termination was due to misconduct rather than being pretextual.  

Kathy Smith v. Mountain Empire Oil

Docket: 2015-02-0112

Judge: Brian Addington

Claimant’s Counsel: David Miller

Employer/Carrier’s Counsel: Alex Morrison

Briefly: Claimant was assaulted while working as a cashier, sustaining physical injuries diagnosed as post-concussion syndrome.  Claimant’s treating physician recommended evaluation with a psychiatrist for PTSD, but the Employer refused to authorize the evaluation, stating that her problems were preexisting.  The Trial Court ordered the evaluation.

Summary: The Claimant sustained injuries to her head in an assault while working as a cashier.  She treated with Dr. Dew, a neurologist, for post-concussive headaches, and gradually began to see improvement.  During that time, the Employer scheduled the Claimant for an evaluation with Dr. Steven Graham for an IME.  Dr. Graham recommended additional medication and recommended evaluation for symptoms of PTSD.  Dr. Dew concurred in that assessment, but the Employer refused to authorize evaluation with a psychiatrist.  The Trial Court ordered the Employer to authorize the evaluation with a psychiatrist as it had been recommended by the ATP.  

Gregory Williams v. NewEgg, Inc..

Docket: 2015-06-0288

Judge: Jim Umsted

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Michael Haynie

Briefly: Employer denied benefits because the Claimant failed to provide notice for nearly six months.  However, the Court found that the Claimant was excused from notifying the employer until such time that he learned that he had experienced a compensable injury. 

Summary: The Claimant sustained an injury to his left shoulder on 11/14/14, but did not report it to a supervisor.  He treated on his own with his PCP and then with an orthopaedic surgeon.  On April 17, 2015, after learning that his injury might be serious, the Claimant reported the injury to his supervisor.  The Trial Court found that the Claimant had a reasonable excuse for failing to report the injury within 30 days because he did not believe it was serious.  As such, the Claimant was excused from the 30 day notice requirement and benefits were ordered.
Allen Callison | Attorney