TN TBWC Decisions: 10/5/15 – 10/9/15

By:  Allen Callison

Bureau of Workers’ Compensation Orders

Expedited Appeal Orders


Shawn Caskey v. Powers Pizza, LLC

Docket No. 205-04-0038

Judge: David Hensley

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Nick Akins

Briefly: Claimant alleged a skin condition and anxiety problem that arose primarily out of his employment.  Judge Durham found that the Claimant was less likely than not to prevail at the compensation level, so benefits were denied.  Claimant appealed that order, but the Appeals Board affirmed the denial of benefits.

Summary: Claimant had a minor altercation with a supervisor at work, prompting supervisor to tell Claimant to clock out and go home.  The following day, Claimant sought medical treatment for anxiety and a skin condition that was diagnosed as scabies.  Claimant did not return to work, and was terminated on May 8, 2015. Claimant’s treating physician completed a “Medical Certificate” for Claimant’s unemployment claim, stating that it was “unknown” whether the condition arose out of employment, but did state that “condition was exacerbated at last period of employment.” Claimant failed to present any argument at the expedited hearing as to how he contracted scabies or how the condition was in any way related to his employment, prompting the order denying benefits.  On appeal, the Claimant failed to file a brief or argument in support of his appeal.  As such, the Appeals Board affirmed the denial of benefits.

Compensation Orders

Karen Quinn v. Seaton Corp d/b/a SMX Staff Management

Docket: 2015-08-0200

Judge: Ken Switzer

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Mike Newton

Briefly: Claimant’s expedited hearing resulted in a denial of benefits.  In large measure, the denial was based upon the Claimant’s lack of credibility and an EMT report stating that the Claimant’s back started hurting before going to bed the night before the alleged accident.  Because Judge Switzer relied on the Claimant’s lack of credibility in denying benefits, it was proper to issue an order dismissing the claim with prejudice.

Summary: In a previous Order issued July 23, 2015, the trial court provided a very lengthy and detailed analysis of the testimony provided by a number of witnesses.  The Court concluded that it found none of the witnesses to be credible and that the only credible evidence admitted was a medical report prepared by an EMT at the Amazon on-site medical clinic.  That report stated that the Claimant had a history of back issues from teaching yoga, but that the problems most recently began before going to bed the night before the alleged accident.  Following the denial of benefits at the expedited hearing stage, Employer’s counsel moved to dismiss the claim with prejudice 30 days later.  The trial court found that the Claimant had taken no additional steps to remedy her evidentiary inadequacies identified in the denial order following the expedited hearing.  Therefore, it was proper to dismiss the Claimant’s claim with prejudice. 

Expedited Hearing Orders

Monica Karig v. Oddello Industries

Docket: 2015-02-0128

Judge: Brian Addington

Claimant’s Counsel: Russell Veldman

Employer/Carrier’s Counsel: Laurie Ball

Briefly: Claimant alleged a gradually occurring injury as the result of repetitive arm movements while working.  ATP chosen from panel stated that he “did not know” whether condition arose primarily out of employment.  As such, trial judge denied benefits because Claimant had failed to establish through the ATP’s opinion that her condition primarily arose out of her employment.

Summary: Claimant reported an at-work injury in December 2014 when she suffered arm pain.  She first sought treatment with a provider on her own before being referred to an orthopaedic surgeon for evaluation.  The surgeon recommended surgery, but the Claimant could not afford surgery.  The Employer subsequently provided a panel of physicians that included the orthopaedic surgeon with whom the Claimant was treating.  The ATP responded to a causation letter from Employer’s counsel stating that he “did not know” if Claimant’s condition arose primarily out of her employment.  Employer denied further treatment and the expedited hearing ensued.  Judge Addington found that where the ATP “does not know” whether the condition arose primarily out of the employment, the Claimant has failed to establish that her condition did arise primarily out of the employment.  As such, benefits were denied as Claimant failed to rebut ATP’s opinion with an expert of her own.

Sharon Berry v. Wolfchase Hospitality, Inc. d/b/a Hilton Garden

Docket: 2015-08-0200

Judge: Jim Umsted

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Robert Binkley

Briefly: Claimant worked as a cook and sprained her ankle while working.  However, she did not know the cause of the injury, only stating that “something happened.”  As such, the court denied benefits and found that the injury was idiopathic.   

Summary: The Claimant alleged an acute injury to her left ankle sustained when she “turned” and sprained her ankle.  On cross-examination at the hearing, the Claimant admitted that she did not fall, did not slip, and did not know how she hurt her ankle, although she was adamant that it began hurting while she was working.  Judge Umsted found that the injury did occur in course of the Claimant’s employment, but he found that it did not arise out of her employment.  As such, he found that the injury was idiopathic in origin and, therefore, not compensable.

David Bucher v. Diversco/ABM Industries, Inc.

Docket: 2015-05-0184

Judge: Dale Tipps

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: David Deming

Briefly: Claimant reported that he sustained a hernia in his groin while lifting five gallon buckets while working.  The Employer denied benefits because there was no medical proof establishing that the hernia arose out of the employment.  However, Judge Tipps found that the Claimant was entitled to a medical evaluation to establish causation.

Summary: Claimant began experiencing pain in his groin while lifting five gallon buckets.  The Claimant reported the pain to his supervisor and was instructed to go to the emergency room.  Therefore, the Claimant was diagnosed with a hernia and referred to Vanderbilt.  The treating physician at Vanderbilt recommended surgery to treat the hernia.  Shortly after surgery was recommended, a panel was provided, but no evaluation was authorized with the physician selected from the panel. In Judge Tipps’ order, he stated that where the Claimant has to seek treatment on his own, the Employer loses the right to control medical care.  In this case, because the physician at Vanderbilt was an established medical provider who had recommended surgery, the Claimant was entitled to an evaluation with him paid for by the Employer to determine whether the hernia arose primarily out of the employment.  Pending that determination, the Claimant’s request for TTD benefits was denied.  

Regina Kirk v., Inc.

Docket: 2015-01-0036

Judge: Thomas Wyatt

Claimant’s Counsel: Carmen Ware

Employer/Carrier’s Counsel: Charles Pierce

Briefly: At the prior expedited hearing, the Claimant’s request for benefits was denied, but she filed a second Request for Expedited Hearing with evidence that remedied her prior evidentiary inadequacies.  As such, the Court found it proper to award medical and indemnity benefits, as well as attorney’s fees.

Summary: Initially, this case has lots of issues, including procedural and substantive challenges to the Claimant’s ability to file a second expedited request for benefits, the requirement to file an affidavit along with the second expedited request for benefits, and the Employer’s rights to pursue a motion to dismiss following an initial denial of benefits at the expedited hearing level.  In this case, benefits were initially denied when the treating physician gave conflicting responses as to whether the injury met the requisite causation standard.  However, those inadequacies were remedied through an additional medical questionnaire that was favorable to the Claimant.  Judge Wyatt, considering the evidence presented by the Claimant and the Employer, which consisted of competing medical opinions regarding medical causation, basically found that the Claimant’s expert was better qualified and had more information than the Employer’s expert.  As such, it was appropriate to award medical and indemnity benefits, as well as a 20% attorney’s fee, based upon the Claimant’s expert’s opinion regarding causation.

Katherine Perrault v. Gem Care, Inc.

Docket: 2015-02-0210

Judge: Brian Addington

Claimant’s Counsel: William Evans

Employer/Carrier’s Counsel: Joe Lynch

Briefly: Claimant alleged her hernia, ruptured appendix, and hemorrhoids were caused by a compensable lifting event at work.  While noting that under the McCord standard, the Claimant need not establish causation through medical opinion at the expedited hearing stage, the trial court found that the Claimant was unlikely to prevail on the merits.  Therefore, benefits were denied. 

Summary: Claimant’s work duties required lifting 37.5 lb parts and moving them from knee level to chest level and back to knee level.  She testified that while lifting a part, she felt immediate pain in her chest and abdomen before needing to have a bowel movement and passing a significant amount of blood. Claimant sought treatment at the local hospital where she reported having blood in her stools off and on for several days.  She later stated that she had experienced the symptoms for a year.  She was later diagnosed with a hiatal hernia and severe hemorrhoids before having to undergo an emergency appendectomy.  The Claimant later told  a medical provider that her job consisted of lifting up to 125 lbs on a repetitive basis.  The trial court found that the Claimant lacked credibility and the medical records provided no support for the conclusion that the symptoms were caused by an acute event or by her employment.  As such, it was proper to deny benefits.

Cheryl Muffat v. Blue Chair, Inc.

Docket: 2015-01-00142

Judge: Thomas Wyatt

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Daniel Howard

Briefly: Injury sustained on January 29th was denied because notice was not given until after the Claimant was terminated on April 27th.  While Claimant was able to establish that notice was properly given, she was unable to establish that her injury arose primarily out of her employment.  Therefore, medical benefits were denied.

Summary: The Claimant alleged that she tripped on a floor mat at work, causing injuries to her foot that were eventually diagnosed as a stress fracture.  The Employer denied that the Claimant provided sufficient notice and, alternatively, that the injury did not primarily arise out of the employment.  At the hearing, the Employer called on the manager to testify about the lack of notice, but he admitted that notice of an at-work injury was given within two or three weeks of the accident.  With respect to causation, none of the treating podiatrist’s records reveal that the onset was “gradual” and the Claimant denied any acute event.  Prior ER records did support the Claimant’s allegation of an acute event, but the trial court found that the Claimant was still unlikely to prevail at a full compensation hearing.