TN Case Law Summaries: 10/12/15 – 10/16/15


Allen Callison

Expedited Hearing Orders

Sean East v. Heritage Hosiery

Docket: 2014-01-0009

Judge: Tom Wyatt

Claimant’s Counsel: Brent McIntosh

Employer/Carrier’s Counsel: Charles Poss

Briefly: In his second expedited hearing, the Claimant sought additional medical benefits and TTD benefits.  The Employer presented evidence from ATP that the Claimant’s work contributed to the condition, but less than 50% as the degenerative condition was the primary reason for the condition.  Because the Claimant failed to present any contrary evidence that the condition primarily arose out of the employment, benefits were denied.

Summary: The Claimant was awarded medical benefits at an earlier expedited hearing, at which time a panel was provided, and the Claimant selected Dr. Peter Lund from a panel.  Dr. Lund opined that it was “possible” that the shoulder injury arose out of the Claimant’s employment based upon the temporal relationship between the employment and the pain.  However, he referred the Claimant to his partner, Dr. Bruce for further evaluation and treatment.  Dr. Bruce responded to a questionnaire and stated that the Claimant had a preexisting labral pathology that “predisposed him to subluxation events with his shoulder,” which, in turn, caused an injury to the suprascapular nerve.  Dr. Bruce, therefore, opined that the pre-existing condition was more than 50% responsible for the condition.  The Court found that this medical opinion was controlling and that Dr. Lund’s “possible” language was the incorrect standard under the new law.  As such, it was proper to deny further benefits for the shoulder because it was a non-compensable injury.

Denita Howard v. US Xpress Enterprises

Docket: 2014-01-0002

Judge: Tom Wyatt

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Charles Gilbreath

Briefly: Claimant sought payment of a medical bill and payment of temporary disability benefits between the date of MMI and the date on which she learned she had been placed at MMI.  While the Court found that payment of the medical bill was required, it also found that the bill had already been paid.  Indemnity benefits were denied.   

Summary: The Claimant was involved in an accident while driving for the Employer.  She sought and obtained emergency care following the accident, including care from Jefferson Davis Emergency Group, LLC.  She asked the Court to order the Employer/Insurer to pay for the medical bill of the emergency physician, which the Employer established had already been paid at the fee schedule amount.  Following emergency treatment, the Claimant treated with a neurologist before being placed at MMI on December 18, 2014.  TTD benefits ceased on January 7th, prompting the Claimant to seek additional TTD benefits between January 7th and February 18th and the Employer to seek reimbursement for benefits paid between December 18th and January 7th.  The Court denied both requests, stating that the Claimant’s request was supported by “no authority.”  The Court further denied the Employer’s request, stating it would reserve the issue until it determined the Claimant’s right to permanent disability benefits. 

Robert Kimery v. Trillium Staffing

Docket: 2015-08-0166

Judge: Amber Luttrell

Claimant’s Counsel: Monica Rejaei

Employer/Carrier’s Counsel: David Deming

Briefly: Claimant alleged an at-work injury that caused a meniscus tear in his left knee.  The Employer denied the claim and obtained copies of the Claimant’s PCP records, which indicated preexisting left knee swelling and tightness.  Based on those records, the ATP opined that the torn meniscus was more likely than not preexisting.  Relying on the medical evidence, the Court denied benefits. 

Summary: The Claimant was involved in a witnessed at-work injury in which he fell to the floor while carrying heavy equipment.  He sought medical benefits and was evaluated by Dr. Riley Jones who recommended surgery.  The day before the surgery, the Employer/Insurer denied the claim and obtained a copy of the Claimant’s records from his PCP.  Those records revealed a long-standing history of left knee swelling and tightness.  The Claimant alleged that the problem was caused by uncontrolled hypertension.  However, when Dr. Jones reviewed the records, he considered them evidence that the Claimant had not been truthful about the nature/extent of any preexisting conditions.  As such, Dr. Jones found that more than 51% of the problem appeared to be pre-existing.  Although the Court appeared concerned that hypertension might have been the cause of the swelling, the fact that no medical evidence was offered to contradict Dr. Jones’ opinion meant that the Court had no choice but to find the injury non-compensable. 

Torris Miller v. TA Operating Corp.

Docket: 2015-07-0114

Judge: Amber Luttrell

Claimant’s Counsel: Monica Rejaei and Amber Sauber

Employer/Carrier’s Counsel: Jared Renfroe 

Briefly: Claimant requested TTD benefits and payment of certain medical benefits.  The Court found that medical evidence supported the Claimant’s contention that he was entitled to indemnity benefits.  However, it found that the Claimant had failed to establish the necessity and reasonableness of the charges.  Therefore, the Employer was not responsible for paying those bills without evidence of necessity and reasonableness.

Summary: The Claimant sustained an at-work injury that was not contested by the Employer.  Initially, the Claimant did not want to pursue a workers’ compensation claim because he was concerned about losing his job.  However, the Employer filed a first report of injury and took other steps indicating that it was aware of an at-work injury.  Despite that, it did not provide a panel of physicians.  The Claimant, apparently, was reluctant to accept authorized care, so he treated on his own with a chiropractor, Dr. Nord, and Dr. Schmidt before referred to a neurosurgeon, which was authorized by the Employer.  The Claimant sought indemnity benefits, which were denied by the Employer, which contested the Claimant had voluntarily quit or been terminated for job abandonment.  However, the Court found that this argument was not supported by the facts and that the Claimant was merely missing work because of his work injuries and no-work job status.  Therefore, the Claimant was entitled to TTD benefits during such time that he presented work notes from the providers.  He was not, however, entitled to payment of the medical bills because he had failed, pursuant to Moore v. Town of Collierville, 124 S.W.3d 93 (Tenn. 2004), to present evidence of the necessity and reasonableness of the charges. 

Shawn Sirkin v. Trans Carriers, Inc.

Docket: 2015-08-0292

Judge: Jim Umsted

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Duane Willis

Briefly: Claimant filed a request for expedited hearing, but failed to provide a supporting affidavit along with her request for expedited hearing.  Therefore, the Claimant’s request for an expedited hearing was denied.

Summary:  The sole issue for the Court was whether the Claimant’s unsigned and unsworn statement identified by the Claimant as an “affidavit” was sufficient to allow her to proceed with a request for expedited hearing.  The Court found that the “affidavit” failed to meet the requirements under the Court of Workers’ Compensation Claims’ Practice and Procedures and the Tenn. R. Civ. P. for a sworn statement.  Therefore, based on the Appeals Board’s holding in Hadzic v. Averitt Express, the Claimant could not proceed to an expedited hearing.