BY: 

 

Allen Callison

Expedited Appeal Orders 

John Miller v. Lowe’s Home Centers, Inc.

Docket No.: 2015-05-0158

Judge: Tim Conner

Claimant’s Counsel: Jill Draughon

Employer/Carrier’s Counsel: Nancy Steer

Briefly: The Appeals Board affirmed Judge Tipps’ award of medical benefits.  The ATP testified via deposition that the Claimant’s hip had been chronically exacerbated by the injury, but that there had been no permanent anatomical change.  This case is one of the first, if not the first Appeals Board decision discussing compensability of an aggravation and the standard for analyzing aggravation cases under the Reform Act.

Summary: Claimant was injured when he tripped and fell onto his left hip. ATP recommended a total hip replacement due to severe osteoarthritis that had been “exacerbated” by the at-work injury.  ATP’s deposition was taken, at which time he testified that the injury “caused the condition to become symptomatic,” that surgery was necessitated by pain and problems following the injury, that surgery would have eventually been necessary regardless of the injury, that the injury caused a temporary exacerbation, and the injury did not cause a permanent aggravation of the left hip condition.  The Appeals Board specifically struck the Trial Court’s reliance on Trosper and other case law as inapplicable under the new law.  However, the Appeals Board affirmed the award of benefits, stating that a permanent anatomical change was not necessary for an award of medical benefits.  Further, citing T.C.A. § 50-6-102(13)(C)-(D), the Appeals Board found that the evidence submitted supported the Trial Court’s finding that the Claimant was likely to prevail on the merits that the accident contributed more than 50% in causing the aggravation. 

*This is a case to follow over the next 12 to 18 months as this is the first known expedited hearing that has or will result in significant medical costs to the Employer/Carrier.  Therefore, the chances of further litigation to the Supreme Court following a full compensation hearing is likely.  

Expedited Hearing Orders

Jared Shannon v. United Parcel Service, Inc.

Docket: 2015-06-0052

Judge: Ken Switzer

Claimant’s Counsel: Julie Reasonover

Employer/Carrier’s Counsel: David Hooper

Briefly: Chief Judge Switzer denied medical benefits for the Claimant where the medical records demonstrated that the Claimant gave inconsistent histories of his accident and Dr. Jason Haslam,  the unauthorized treating physician, rendered an opinion that this was not a work-related injury based on the intake forms and the Claimant’s medical history.

Summary: The Employer denied benefits on two bases: 1) that the Claimant failed to give proper notice of an injury and 2) that the injury was caused by a MVA several months prior.  The Trial Court found that the Claimant did provide statutory notice as evidenced by the Employer’s own records.  However, the Court found that inconsistencies in the medical records, combined with the opinion of the treating provider, made it unlikely that the Claimant would prevail at a full compensation hearing.  In this case, the Trial Court was faced with the question of what weight to give an unauthorized treating provider, and it responded by giving Dr. Haslam significant deference given that he rendered treatment and provided the only medical opinion in the record.  Finally, the Trial Court noted that the Employer took at least 28 days between receiving notice of the injury and issuing its denial.  Citing to the “claims handling standards” contained in the TDOL’s Rules & Regs., the Trial Court referred the Employer to the penalty division for failing to issue the denial within 15 days of notice of the injury.  

Phyllis Hall v. Fisher Installations, LLC

Docket: 2015-06-0518

Judge: Josh Baker

Claimant’s Counsel: Dan Todd

Employer/Carrier’s Counsel: Gordon Aulgar

Briefly: Claimant sustained an at-work injury, but Employer did not report the injury to workers’ compensation.  Instead, Employer paid Claimant’s co-pays and instructed her to treat at TOA.  After the treating physician recommended surgery, the Employer stopped paying the co-pays and denied the claim.  The Trial Court ordered payment of medical benefits and TTD benefits.   

Summary: The Claimant sustained a compensable at-work injury, but the Employer did not notify its carrier of the injury.  Claimant testified that Employer did not report it because the reporting could impact the Employer’s ability to obtain construction jobs if its MOD factor was too high.  Employer testified that it did not report the injury because of concerns that the Claimant would fail a drug screen and would be terminated.  The Court accepted the Employer’s justification, but found that there was no evidence that the Claimant was actually under the influence.  Further, the Court found that the Employer instructed the Claimant to treat at TOA and even helped pay for the treatment.  Therefore, the Employer accepted Dr. Alexander at TOA as the ATP, thereby becoming responsible for payment of medical benefits.  Finally, the Court ordered TTD benefits, but could not determine the amount owed because the Employer had failed to file a wage statement.  

Jose Silva v. Toni Shouse

Docket: 2015-02-0226

Judge: Brian Addington

Claimant’s Counsel: Pro Se

Employer/Carrier’s Counsel: Eric Shen

Briefly: Claimant sought benefits for injuries sustained in an MVA when he was traveling in his personal vehicle.  The Court issued its order “on the record” and without a hearing.  The Court denied benefits, stating that the Claimant had failed to provide any evidence that he was in the course of his employment when the accident occurred. 

Summary: The Claimant filed a Petition for Benefit Determination stating that his MVA occurred when driving “from one job site to another – moto (sic) vehicle accident.” No affidavit was filed along with the PBD.  The Employer/Carrier filed an affidavit from the Claimant’s supervisor, stating that the Claimant was not traveling to another jobsite maintained by the Employer.  As such, the Trial Court denied benefits, stating that the only admissible evidence regarding the course and scope of the Claimant’s employment came from the Employer.  Therefore, the Court found that the Claimant was not in the course of his employment when the accident occurred. 

Thomas Seabaugh v. Revel Logging.

Docket: 2015-07-0121

Judge: Allen Phillips

Claimant’s Counsel: Robert Keeton

Employer/Carrier’s Counsel: Jeff Foster

Briefly: Claimant sustained compensable accident, picked Dr. Brophy from a panel of physicians, and reported injuries to his neck, left shoulder, left buttock, and right knee at the first evaluation.  Dr. Brophy evaluated the neck, but did not render any treatment for the left shoulder.  Claimant sought a new panel of orthopaedic surgeons for evaluation of the left shoulder, which was granted. 

Summary: The Claimant sustained an at-work injury when his truck overturned.  Treatment was immediately authorized and the Claimant selected Dr. John Brophy.  Initial intake forms included notations of pain in the Claimant’s left shoulder, neck, left buttock, and right knee.  Dr. Brophy obtained an MRI of the cervical spine, which noted no need for surgical intervention.  Dr. Brophy eventually placed the Claimant at MMI and full duty work for the Claimant’s neck, as well as referred him for evaluation with an orthopaedic surgeon for the left shoulder, but through the Claimant’s personal health insurance.  The Court ordered the Employer to provide a panel of physicians to evaluate and treat the left shoulder, stating that the medical records evidenced the fact that the Claimant had initially reported left shoulder pain, but that Dr. Brophy had failed to evaluate the shoulder.