Tennessee Case Law Summaries                                                                                        

Week of November 2 to November 6, 2015

BY:  Allen Callison

 

Bureau of Workers’ Compensation Orders

Compensation Hearing Orders

Richard Ballew v. Shomaker Lumber Co., Inc.

Docket: 2015-07-0020

Judge: Allen Phillips    

Claimant’s Counsel: James Bradberry

Employer/Carrier’s Counsel: Lee Ann Murray

Briefly: Claimant sustained serious injuries to two fingers when he placed his hand on a blade and then apparently motioned to a co-worker to engage the blade.  The Employer presented proof that the Claimant provided a substituted urine sample at the hospital that was at the low temperature range and was devoid of any morphine despite the hospital’s use of an IV more than an hour before.  The Trial Court found that the Employer had failed to present proof of intoxication.  The Trial Court further adopted the ATP’s impairment rating over that of Dr. Samuel Chung.

Summary: The Claimant was operating a saw along with a co-worker when hydraulic fluid began to leak.  While inspecting the leak, the Claimant and a co-worker had a miscommunication, resulting in the blade’s being engaged while the Claimant’s hand was still on the blade, amputating one finger and significantly impairing another.  At the hospital, the Claimant’s left hand was bandaged and he was provided morphine for pain.  All witnesses testified that the Claimant did not appear impaired.  The Claimant provided a urine sample that was reportedly at the low range of normal temperatures and the UDS was negative for all substances.  However, an anonymous phone call to the Employer alleged that the Claimant substituted the sample.  This led to an expert’s being retained who testified that the morphine from an IV an hour prior should have shown up on the toxicology report.  However, the Trial Court said that the lack of any witness testimony regarding impairment, combined with the purportedly elaborate scheme to substitute the sample was unlikely.  Therefore, the Employer did not establish that the Claimant was in violation of the Drug-Free Workplace statute or rule, and the Claimant did not need to rebut the presumption of intoxication.  Further, the Court was presented with dueling impairment ratings from the ATP (5%) and Dr. Chung (8%).  The Court considered the methodologies for arriving at both ratings and found that Dr. Chung’s rating did not overcome the presumption favoring the ATP’s. 

Expedited Appeals Board Order

Robin Moore v. Ingles Markets, Inc; Stephen Seiferth v. Ingles Markets, Inc.

Docket: 2015-02-0183

Judge: Marshall Davidson

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Judith DePrisco

Briefly: Employees alleged exposure to pesticides at work, resulting in respiratory and neurological problems.  The Trial Court ordered the Employer to provide appropriate medical evaluations to determine causation.  The Appeals Board affirmed.

Summary: The Claimants worked in the dairy department at Ingles Markets and alleged that pesticide was sprayed into their area in 15-minute intervals to prevent flies and insects from gathering.  The Trial Court found that the Employer was obligated to provide panels from which the Claimants could select evaluating/treating providers.  On appeal, the Employer failed to file a record or a statement of evidence.  Therefore, the Appeals Board noted, “the totality of the evidence introduced in the trial court is unknown, and we decline to speculate as to the nature and extent of the proof presented to the trial court.”  Further, the Employer failed to file a brief or other argument in support of its appeal.  

Expedited Hearing Orders

Pamela Cargile v. HCA Physicians Service

Docket: 2015-06-0034

Judge: Dale Tipps

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Catheryne Grant

Briefly: Claimant sought medical benefits for carpal tunnel syndrome.  The Employer denied the claim because the Claimant failed to provide medical proof of causation.  However, the Trial Court found that, pursuant to McCord v. Advantage, the Claimant was entitled to a panel of providers in order to determine causation.  There, the Claimant was entitled to an evaluation paid for by the Employer to determine if her carpal tunnel syndrome primarily arose out of her employment. 

Summary: The Claimant had a prior carpal tunnel claim in 2003 that had been settled with open future medical benefits with Dr. Weikert.  The Claimant subsequently began working for Employer in a job that was typing intensive.  The Claimant developed pain in her hands and wrists, prompting her to file an RFA against her prior Employer to compel medical care.  With respect to that claim, Dr. Weikert stated that there was no indication that her problems were new and unrelated to her original pain.  The Claimant also sought treatment with Dr. Jason Haslam, Dr. Steven Graham, Dr. David West, and Brant Bell (a PA for Dr. Haslam) for her symptoms.  Dr. David West diagnosed carpal tunnel based upon an abnormal EMG/NCV performed by Dr. Graham.  The Trial Court found that the diagnosis of carpal tunnel was supported by the diagnostic testing.  Further, the Court found that the Claimant was entitled to a medical opinion from Dr. Haslam, paid for by the Employer, to determine causation. 

Randall Harper v. USF Holland Trucking Co.

Docket: 2015-06-1067

Judge: Robert Durham

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Stephen Heard

Briefly: Claimant alleged that he was bitten by a spider or insect, causing him to develop cellulitis.  However, the Claimant failed to establish through the voluminous medical records that he had ever been bitten or that the bite arose out of his employment.  Therefore, benefits were denied.    

Summary: The Claimant was an over-the-road driver for Employer and was on the road when he noticed swelling in his ankle.  After a couple of days, he sought medical treatment and was diagnosed with cellulitis.  After antibiotics, the condition was appropriately treated and the Claimant was capable of returning to work.  At the hearing, the Claimant could not establish that he was bitten by an insect, much less, that such a bite would have arisen out of his employment.  Therefore, lacking evidence that would support a conclusion that the cellulitis arose out of or in the course of the Claimant’s employment, the Court denied benefits.

Desiree Macumber v. USXpress

Docket: 2015-02-0226

Judge: Tom Wyatt

Claimant’s Counsel: Jim Dreaden

Employer/Carrier’s Counsel: Scott Johnson

Briefly: Trial Court awarded medical and indemnity benefits to Claimant despite finding that she told her supervisor the morning of the injury that her lower back was hurting.  The medical proof consisted of a cursory statement that the condition resulted from the workers’ compensation injury, but the Court appears to have primarily focused on the factual evidence presented by the parties, which demonstrated that the Claimant had significant impairment following the accident. 

Summary: The Claimant complained of low back pain the morning of the accident, but was not visibly impaired.  However, shortly thereafter, she was in serious pain after reportedly hurting her back while turning a rusted crank.  Medical care was initially provided and the provider at the occupational clinic stated that the Claimant’s condition was “resulting from the workers’ compensation injury.”  Based upon the factual evidence that the Claimant, who was not impaired prior to the alleged accident, was significantly impaired following the accident, as well as the medical proof, the Court found that the Claimant was likely to prevail at a compensation hearing on the merits of her claim.  Further, the Court found that an intervening injury sustained when the Claimant’s crutches slipped out from under her did not qualify as misconduct or negligence that would sever the Employer’s responsibility from the initial accident.  

Ernest Peeples v. Baptist Memorial Hospital – Memphis

Docket: 2015-08-0268

Judge: Amber Luttrell

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Matthew Kirby

Briefly: Claimant failed to file an accompanying affidavit along with the request for expedited benefits.  Therefore, the request for benefits was denied. 

Summary: Following the decisions in a number of similar cases, the Trial Court denied benefits because the Claimant failed to file an affidavit along with his expedited hearing request. 

Shelia Smithee v. Goodwill Industries

Docket: 2014-02-0022

Judge: Brian Addington

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Eric Harrison

Briefly: Claimant reported an at-work injury a day after it occurred, but was not provided with a panel for over a month.  At the initial evaluation with the provider selected from the panel, the Claimant was asked to submit to a UDS, but had urinated minutes prior.  She later submitted to a drug screen later that afternoon, which was negative.  Employer’s reliance on the Drug-Free Workplace Program was refuted because there was no evidence of intoxication on the date of the accident.

Summary: The Claimant reported an at-work injury the day after it occurred.  She requested medical care on several occasions, but was not provided with a panel of providers for more than a month.  When medical care was authorized, she selected an occupational clinic and showed up for treatment that same day.  Upon entering the provider’s office, she used the restroom before checking in at the front desk.  However, she was immediately asked to submit to a UDS, but she was unable to provide a sample.  After several hours of waiting and being unable to provide a sample, the Claimant was told to leave the provider’s office.  Later that afternoon, she did submit to a UDS at a different location, which was negative.  The Employer denied the claim based on the refusal to submit to the UDS.  The Trial Court, however, noted that a UDS obtained more than a month after the accident would provide no indication of intoxication at the time of the accident and, even if it did, the UDS later that afternoon was negative regardless.  Therefore, the Claimant was entitled to medical care to evaluate and treat her at-work injuries. 

Deborah Syph v. Choice Food Group, Inc.

Docket: 2015-06-0288

Judge: Josh Baker

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Michael Haynie

Briefly: Claimant alleged an at-work injury, but her authorized treating provider stated that he was unable to state within a reasonable degree of medical certainty that she sustained a new injury.  The trial court, therefore, deferred to the ATP and denied benefits. 

Summary: The Claimant reported an at-work injury, but was able to continue working her regular job.  Eventually, treatment was authorized and she began treating with Dr. Law at Premier Orthopaedics.  Dr. Law was provided with medical records from 2003, 2006, and 2009 indicating chronic back pain.  In response to a medical questionnaire from the Employer, Dr. Law stated that he was unable to state within a reasonable degree of medical certainty that the Claimant sustained a new injury while working for Employer.  Therefore, the Trial Court denied medical and indemnity benefits. 

John Tidmore v. Tennessee Steel Center

Docket: 2015-03-0265

Judge: Lisa Knott

Claimant’s Counsel: Timothy McLaughlin

Employer/Carrier’s Counsel: Jeff Taylor

Briefly: Claimant’s work duties were repetitive and generally of a heavy-duty nature.  He reported shoulder pain to his PCP, who ordered an MRI.  After learning about a rotator cuff tear, the Claimant reported an at-work injury to the Employer.  The ATP provided conflicting opinions regarding causation, but the trial court adopted the second opinion based on the circumstances under which each opinion was given.  Therefore, medical benefits were ordered. 

Summary: The Claimant testified that he had recurrent aches and pains, but that his shoulder continued to hurt, prompting him to seek treatment from his PCP.  An MRI was ordered and, upon learning that the MRI revealed a tear, the Claimant reported a claim to his Employer.  A panel was provided and the Claimant selected Dr. Brady.  Dr. Brady initially stated that he was unable to state whether the condition was causally related to work because of the long-standing pain reported by the Claimant.  However, the Claimant brought in a video of a co-worker performing his job duties, prompting Dr. Brady to provide a subsequent causation opinion that the shoulder condition more likely than not arose primarily out of the employment considering all causes.  The Employer denied based upon a lack of sufficient notice within 30 days and due to the conflicting opinions given by Dr. Brady.  The Trial Court, however, found that the notice given on or about the date that the Claimant learned that he had a tear in his shoulder was acceptable under the circumstances.  Further, the Trial Court found that the Claimant had submitted sufficient medical proof at the expedited hearing stage in order to obtain medical benefits from Dr. Brady, whom he selected from the panel.  The Court did note that if the Employer had provided Dr. Brady with additional information, Dr. Brady’s opinion could further change, but such a possibility was mere speculation at that time.