TBWC Decisions: Weeks of 2/15/16 & 2/22/16
Tennessee Case Law Summaries
Weeks of February 15st and February 22nd, 2016
BY: Allen Callison
Supreme Court’s Special Workers’ Compensation Panel
Clyde Cowan v. Knox County, Tennessee
Docket: E2015-00405-SC-R3-WC
Judge: Don Ash, Senior Judge
Appeal from: Clarence Pridemore, Jr.
Claimant’s Counsel: Tony Farmer and Chris Hayes
Employer’s Counsel: David Sanders
Briefly: WC Panel affirmed the Trial Court’s award of benefits, stating that the statute of limitations did not begin to run until nearly 10 years after the initial injury because the Claimant was not aware he had sustained a permanent injury until a doctor recommended surgery due to the herniated disc.
Summary: The Claimant was injured in 2001 and was diagnosed with a herniated disc at L5. Conservative treatment, including an ESI, resolved the pain and the Claimant returned to work as a Sheriff’s deputy. In June 2011, the Claimant sustained a recurrence of back pain while in the shower at home and underwent surgery two months later. The Employer denied that the injury arose out of the employment and/or argued that the SOL had expired. At trial, the Court found that the SOL did not begin to run until the Claimant knew or should have known he sustained a permanent injury. In this case, the Court adopted the Claimant’s testimony that he was not aware of that fact until August 2011, more than 10 years after his initial date of injury. The WC Panel affirmed this conclusion, stating that there was no evidence to rebut the Claimant’s testimony.
Expedited Appeals Board Orders
Sallie Maples v. Federal-Mogul Corporation
Docket: 2015-04-0039
Judge: David Hensley
Appeal from: Robert Durham
Claimant’s Counsel: Steve Waldron
Employer/Carrier’s Counsel: Neil McIntire
Briefly: The Appeals Board affirmed the Trial Court’s conclusion that the Claimant gave notice within 30 days of knowing or “should have known” about the causal relationship. Further, the Appeals Board adopted the “last day worked” rule under the Reform Act and found that the PBD was filed within one year of her last day worked.
Summary: Claimant had repetitive job duties at an automatic press for ten years. Her last day of work was August 1, 2014, but she testified that she had been in pain for a year or more before she “couldn’t deal with it anymore.” Medical providers diagnosed the pain in her hands as arthritis, but it was not until October 13, 2014, that a physician reportedly told the Claimant that her condition could be the result of her employment. on November 24, 2014, notice of an injury was given to the Employer and on January 15, 2015, the claim was denied. A PBD was filed on May 5, 2015. The Court found that the statute of limitations began to run either August 1, 2014, when she last worked or November 3, 2014, when she received her physician’s written report. Based on these considerations, the Claimant’s notice of injury was timely and the claim was brought within the statute of limitations.
Ronald Pool v. Jarmon D&Q Transport, et al.
Docket: 2015-06-0510
Judge: Marshall Davidson
Appeal from: Ken Switzer
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Duane Willis
Briefly: Appeals Board adopted pre-2014 W.C. Panel’s standard that “actual notice of the manifestation of an occupational disease is sufficient to trigger the notice period.” In this case, the Claimant provided notice within that time period, thereby satisfying the notice requirement.
Summary: Claimant worked as a shuttle bus operator and alleged that he was exposed to mold that was present in the bus he was responsible for driving. At the first appeal, the matter was remanded to determine whether the Claimant had provided sufficient notice pursuant to T.C.A. § 50-6-305. Based on the facts presented at the hearing, the Claimant’s providing notice of an occupational disease before any actual diagnosis from a physician was sufficient to satisfy the notice requirement and justify the trial court’s award of medical benefits to determine causation.
Julian Phillips v. Carolina Construction Solutions
Docket: 2015-01-0208
Judge: David Hensley
Appeal from: Audrey Headrick
Claimant’s Counsel: Julie Reasonover
Employer/Carrier’s Counsel: Stephen Morton
Briefly: The Appeals Board conducted a thorough review of procedural rules governing the Dispute Certification Notice, as well as the rules governing an expedited hearing based on a review of the record. With respect to the compensability of the claim, the Appeals Board affirmed denial of benefits based on inconsistent statements from both the Claimant and the treating physician regarding the onset of cervical pain and the precipitating events.
Summary: Claimant alleged an injury on October 15, 2014, while carrying a large object, as well as another injury in November after using a large drill. The medical records vacillated between the two events and the Claimant written statements did not clarify the issue. Further, an affidavit of the treating physician appeared to confuse the Trial Court even further, prompting a denial of benefits at the interlocutory, expedited hearing. On appeal, the Claimant argued that the Employer was procedurally barred against raising the compensability of the claim because that issue was not addressed in the DCN. However, the Appeals Board dismissed that argument, stating that the DCN could not be reviewed in a vacuum, but must be reviewed in the context of the parties’ respective arguments. The Appeals Board refused to overturn the Trial Court, stating that based on the limited evidence and the lack of an evidentiary hearing, the Trial Court was justified in denying benefits.
Expedited Hearing Orders
Johnny Reece v. Jeffrey Darrell Moffitt, d/b/a Moffitt Logging
Docket: 2015-01-0199
Judge: Tom Wyatt
Claimant’s Counsel: Robert Wolford
Employer/Carrier’s Counsel: Pro se
Briefly: Claimant testified he was injured while working as a logger. Medical proof demonstrated that the Claimant’s injuries were the result of blunt force trauma arising out of his employment and that he was disabled as a result of those injuries.
Summary: Claimant testified he was injured while working as a logger when a large limb landed on him. The Employer was uninsured and did not retain counsel. The facts demonstrated that as a direct result of the Claimant’s work as a logger, he sustained the significant injuries and was disabled from working as a result of them.
William Thomas v. MTD Products, Inc.
Docket: 2015-07-0229
Judge: Amber Luttrell
Claimant’s Counsel: Jeff Boyd
Employer/Carrier’s Counsel: Jim Glasgow
SIF Counsel: Art Wells
Briefly: The Court awarded medical benefits in a denied case involving an intervening, non-related abscess in the shoulder area, as well as a UR denial that was not issued in compliance with the Rules & Regs.
Summary: Claimant alleged a gradually occurring injury after working in a position for two or three days pushing and pulling on a lever. Medical records noted a “history of trauma” and the Claimant subsequently was diagnosed with a an abscess in his right chest near the collarbone. Other medical records provided a disjointed history of right shoulder pain. Eventually, a panel was provided and the ATP recommended surgery for impingement syndrome and a partially torn rotator cuff. A UR physician found that the surgery was not medically necessary without conservative care. However, the UR decision was not timely provided to the Employee or his attorney in compliance with the UR Rules & Regs. Therefore, the Court found that the ATP’s opinions regarding causation and the medical necessity of surgery sufficiently carried the Claimant’s burden of proof.
Benjamin Mull v. Henkels & McCoy
Docket: 2015-01-87845
Judge: Audrey Headrick
Claimant’s Counsel: Josh Ward
Employer/Carrier’s Counsel: Rick Evans
Briefly: Employer denied benefits, stating that Claimant had not provided adequate notice and that his injuries did not arise primarily out of the employment. The Court found that notice provided to a co-employer or general contractor at the time of the accident was sufficient notice to bind the primary employer. Further, the medical proof consistently cited the onset of injury occurred at work.
Summary: Claimant was employed by a subcontractor for TVA. He alleged that he was injured while working with a crew of TVA employees lifting a 75-100 lb coil of steel. Medical records documented that the accident occurred about a 45 days after the alleged incident occurred, but the Claimant testified that he was describing when his symptoms worsened as opposed to when they began. Further, the Claimant testified that immediately after the accident occurred, he notified his foreman that he strained his back and was sent to a TVA nurse a couple of days later. The Trial Court found that the inconsistencies in the medical records were adequately explained and the Claimant’s notice to TVA was sufficient to constitute notice to the Claimant’s employer.
Stephen Shepherd v. Haren Construction Co., Inc.
Docket: 2015-01-0325
Judge: Tom Wyatt
Claimant’s Counsel: William Brown
Employer/Carrier’s Counsel: Leslie Bishop
Briefly: The Trial Court denied indemnity benefits after the Claimant was terminated for misconduct. Further, the Trial Court found that a Claimant must provide notice to his employer before seeking to treat on his own. Because the Claimant declined to notify his Employer of his intent to seek treatment independently, he was not entitled to reimbursement for those benefits.
Summary: Claimant sustained a laceration to his arm while working at his Employer’s excavation site. He was released with no restrictions other than to keep the wound clean for two days by a physician’s assistant at an urgent care clinic. The following day, the Claimant struck a marked and known gas line, delaying work for several hours and costing the Employer money. He was terminated at the end of the week for using a backhoe in violation of his supervisor’s instructions. The Claimant sought TTD/TPD benefits after he sought and obtained medical care on his own and his physician placed him out of work. The Trial Court, finding that the Claimant had been terminated for misconduct, declined to award indemnity benefits. Further, the trial court declined to award medical benefits because the Claimant had failed to seek authorization to treat on his own.
Docket: 2015-08-0106
Judge: Jim Umsted
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Blair Evans
Briefly: Trial Court denied TPD benefits after the ATP testified that the Claimant could work light duty and the Employer offered suitable employment, but the Claimant failed to show up for work.
Summary: Following a prior expedited hearing, benefits were awarded. The Employer noticed the deposition of the ATP to determine whether the Claimant could return to some employment. The ATP testified that she could, so the Employer offered suitable employment. However, the Claimant failed to contact the Employer to discuss to the offer or to show up at the appointed time and date. Therefore, she was terminated. The Trial Court found that a suitable offer of employment had been extended and the Claimant’s termination was made due to misconduct of not showing up for work.
David Tucker v. Star Transportation
Docket: 2015-01-0281
Judge: Tom Wyatt
Claimant’s Counsel: Dan Todd
Employer/Carrier’s Counsel: Sarah Reisner
Briefly: The Trial Court denied indemnity benefits because the Claimant refused to return to Smyrna for light duty accommodation. The Court specifically found that “Tennessee law favors enforcement of employers’ light-duty work programs even when those programs inconvenience the employee.”
Summary: The Claimant sustained a compensable injury and treatment was provided. The Claimant, who is from South Georgia, was offered light duty employment at the Employer’s hub in Smyrna, TN, approximately 450 miles from Claimant’s residence. The Claimant accepted the employment and initially availed himself to the employment and treatment in Tennessee. However, he subsequently requested a panel and treatment closer to him home. The Court found that the Employer made several reasonable offers to accommodate the restrictions at the location in Smyrna, but the Claimant voluntarily refused to avail himself to that option.
Bradley Booker v. Mid-City Grill
Docket: 5015-02-0222
Judge: Brian Addington
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Pro se
Briefly: The parties agreed to a resolution of their dispute at the expedited hearing, including the uninsured employer’s paying all medical bills and TTD benefits.
Summary: Employer was uninsured, so the Claimant’s personal health insurance covered some medical bills for a subarachnoid hemorrhage. The Employer agreed to reimburse the health insurance and pay TTD benefits.
Tammy Napier v. Volunteer Knit Apparel, Inc.
Docket: 2015-02-0263
Judge: Robert Durham
Claimant’s Counsel: Mark Lambert
Employer/Carrier’s Counsel: Amanda Kelley
Briefly: The Trial Court denied medical benefits after the ATP provided inconsistent statements regarding causation, but definitively checked a box in response to a questionnaire from the Employer’s counsel stating that the injury did not primarily arise out of the employment.
Summary: The Claimant worked a repetitive job that she believed cause her left shoulder pain. The ATP from the panel provided differing opinions regarding causation, but after watching a video provided by the Employer, checked the box on a questionnaire stating that the injury did not primarily arise out of the employment. He did state that it was possible, however. The Trial Court, after hearing the evidence, found that the ATP’s only definitive answer regarding causation was on the medical questionnaire. As such, the Trial Court was obligated to accept that opinion and decline to award benefits.
Linda Miller v. We Care Services/Comfort Keepers and Accident Fund Ins.
Docket: 2014-08-0326
Judge: Allen Phillips
Claimant’s Counsel: Andrew McClelland
Employer’s Counsel: Stephen Miller
Carrier’s Counsel: Cole Stinson
Briefly: The Trial Court denied medical benefits, stating that the Claimant’s treating physicians had failed to provide any opinion regarding causation despite having evaluated her numerous times. The Trial Court specifically stated that the Claimant’s own account of her injuries is not medical proof; therefore, when the physician includes that information in the history, it does not constitute a medical opinion.
Summary: Claimant alleged either a gradually occurring injury or an acute injury. Insurer argued that if the claim was compensable, it was gradually occurring and, therefore, the date of injury was outside its policy period. The Employer argued that the injury was not compensable, but if it was, it was the result of an acute event while Insurer had coverage. The Trial Court found that the Claimant had treated with a number of physicians, but that none had provided any opinion as to the cause of the pain in her wrists and arms. Therefore, based on the dearth of medical opinion regarding causation, the Trial Court declined to award medical benefits.