TN – TBWC Decisions: 9/28/15 – 10/2/15







By: Allen Callison

Compensation Appeal Orders

Verna Silas v. Brock Services (link)

Docket No. 2014-02-0013

Judge: David Hensley

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Brad Griffith

Briefly: Following denial of benefits at the expedited hearing stage, it is appropriate for trial court to dismiss the Claimant’s petition for benefits without prejudice if the Claimant fails to articulate a plan to present sufficient evidence at a compensation hearing.

Summary: The Claimant reported an at-work lifting injury.  Although the claim was initially denied, the Employer eventually provided a panel and the Claimant selected an ATP from a panel.  The ATP opined that the Claimant’s condition did not primarily arise out of her employment.  However, she filed a Petition for Benefit Determination and an expedited hearing request notwithstanding the ATP’s opinion.  The trial court found the injury noncompensable, but the Claimant did not appeal.  After three months, the Employer filed a motion to dismiss the claim pursuant to the applicable rules and regulations.  The trial court granted the motion to dismiss without prejudice and the Claimant appealed.  The Appeals Board agreed, stating that the Claimant had failed at any point to express an intention to obtain expert evidence in support of a compensable injury. 


Expedited Appeal Orders

Luther Buchanan v. Carlex Glass Co. (link)

Docket: 2015-01-0012

Judge: Tim Conner

Claimant’s Counsel: Pro se

Employer/Carrier Counsel: Joseph Lynch

Briefly: Employer appealed expedited hearing award for medical benefits and the Appellate Division agreed that the surveillance video of the alleged event supported Employer’s denial of the claim.  Case was reversed and remanded to the trial court.

Summary: Employee alleged an at-work injury while changing a paint screen in the factory.  He first reported that the injury occurred at 6:00 a.m., but when the surveillance footage failed to show any at-work injury, the Claimant changed his story and alleged that the injury occurred at 3:00 a.m.  Again, the surveillance footage failed to show any at-work injury.  The trial court concluded that the surveillance footage was entitled to “little weight” because it did not include a date or time stamp.  However, the Appeals Board found that the Employer’s testimony explaining the time stamp and other discrepancies in the surveillance video were well explained.  Further, in a note that is sure to be cited by defense attorneys going forward, the Board stated: “Finally, it is clear from the medical records admitted into evidence that the ‘causation opinions’ included in these [medical] records resulted merely from Employee’s subjective description of the alleged work accident.” As such, where the Employer discredits the Claimant’s account of the injury itself, a favorable medical opinion in support of the Claimant may not be enough. 

Expedited Hearing Orders

Chris Hardin v. Dewayne’s Quality Metals (link)

Docket: 2015-07-0067

Judge: Allen Phillips

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Gordon Aulgar

Briefly: Medical benefits were awarded where Claimant had multi-year history of hand/wrist pain, which Claimant asserted was worsened through his job duties, which were described as repetitive.  Court found Claimant entitled to a medical opinion from an ATP.

Summary: Claimant reported a longstanding history of arthritic hand and wrist pain.  However, in December 2014, an EMG was performed and revealed “diabetic neuropathy and superimposed bilateral carpel tunnel syndrome and ulnar nerve neuropathy at the elbows.” Claimant was reportedly told by the physiatrist performing the EMG that the problems could be work related.  Claimant reported an at-work injury to his supervisor following the EMG.  Claimant underwent surgery in March 2015 and applied for FMLA leave shortly before the surgery, apparently under the mistaken impression that he was applying for workers’ compensation benefits.  Claimant filed a PBD for workers’ compensation benefits and the trial court found that the Claimant, having alleged an at-work injury, was entitled to a medical opinion regarding causation from a panel provided by the Employer/Insurer.

Delores McNeill v. Trustpoint Hospital, LLC (link)

Docket: 2015-05-0308

Judge: Dale Tipps

Claimant’s Counsel: Steven Waldron

Employer/Carrier’s Counsel: Tamara Gauldin

Briefly: Claimant was assaulted by a psychiatric patient, sustaining compensable physical injuries.  Claimant also alleged a psychiatric injury arising out of the assault, which was denied.  Trial court, tracking the statutory language, found that Claimant was not entitled to psych treatment without a referral to a psychiatrist from a panel physician.  

Summary: The Claimant was assaulted by a patient at a psychiatric facility.  She alleged orthopaedic injuries which were accepted as compensable.  Claimant selected Dr. Jekot at her ATP from a panel and Dr. Jekot placed her at MMI after several months of treatment.  Thereafter, Claimant sought treatment with a psychiatrist, but the request was denied.  Claimant obtained an IME with Dr. Kyser to support the causation opinion and to obtain an opinion that she was totally disabled due to the psychiatric condition.  The trial court found that without a referral from Dr. Jekot for psychological treatment, it was unable to order the Employer to provide a panel of physicians.  Further, the trial court found that because the psychiatric injury arose out of a physical assault and the Claimant had reached MMI for those injuries, the Claimant was unable to obtain additional TTD due to statutory language that MMI is presumed when the Claimant has reached MMI for orthopaedic injuries and the mental injury arose out of a physical injury. 


Raymond Scott, Jr. v. Snyder Services Plumbing Co. (link)

Docket: 2015-08-0118

Judge: Jim Umsted

Claimant’s Counsel: Drew Davis

Employer/Carrier’s Counsel: Devin Williams

Briefly: Benefits were denied where Claimant initially sought treatment on his own and told the provider that his injury was not work-related.  As such this was a factual rather than medical issue such that no panel was needed to determine causation.

Summary: Claimant alleged an elbow injury while working as a plumber.  He sought treatment on his own two days later at an orthopaedic clinic.  At that time, he told the physician that his injury was not work-related.  Several days later, the Claimant did report that the injury was work-related to both his treating physician and his employer.  However, the trial court found that the “initial report”, namely the account he initially told the treating physician, was the most accurate account.  Therefore, the trial court found that the injury was not compensable and the Claimant was not entitled to benefits.