TN – TBWC Decisions, Sept 21-25

By: Allen Callison

Week of September 21 through September 25, 2015

 Expedited Appeal Orders

Mitchel Helgerson v. Packer Sanitation Services, Inc.

Docket: 2014-03-0023

Judge: David Hensley

Claimant’s Counsel: David Sexton

Employer/Carrier’s Counsel: Charles Gilbreath

Briefly:  Claimant is not required to prove medical causation at the expedited hearing level, but merely is requited to show that he is “likely to prevail at a [compensation] hearing on the merits.” Reaffirms the McCord standard issued earlier in 2015.

Summary: Claimant’s knee popped and he felt immediate pain while stepping down from a stool at work. There was some dispute as to how the Claimant’s injury occurred, with the Claimant offering one story and his supervisor offering a different account.  The trial court found the Claimant to be credible and accepted his account of the facts.  Based upon that finding, the trial court find the Claimant to be entitled to authorized medical care to determine causation and treatment.  The Employer’s appeal focused on the fact that the Claimant had not yet provided medical proof that the injury “primarily arose out of” his employment.  The Appellate Board, citing McCord found that the Claimant did not have to prove that element at the expedited hearing level; he need only establish that he is more likely to prevail at a compensation hearing on the merits. 

William Edward Smith v. The Newman Group, LLC

Docket: 2015-08-0075

Judge: Timothy Conner

Claimant’s Counsel: Lisa June Cox

Employer/Carrier’s Counsel: Hailey David

Briefly: Claimant’s failure to file supporting affidavit with a petition for expedited hearing can be remedied by filing a second petition for expedited hearing with supporting affidavits. 

Summary: Claimant filed a Petition for Benefit Determination on March 27, 2015, seeking temporary disability benefits.  A Request for Expedited Hearing was filed on June 30, 2015, but no supporting affidavits were filed as required by Tenn. Comp. R. & Regs. 0800-02-21-.14(1)(a)(2014).  The Employer filed a motion to dismiss due to failure to file affidavits in support of the REH, which was granted.  A second REH was filed with supporting affidavits on July 20, 2015.  Employer again filed a motion to dismiss arguing that the Claimant was not allowed to file a second REH.  The Trial Court denied the motion to dismiss and found that the Employee had “corrected any defects in his initial REH by filing the second identical REH with supporting affidavits.”  The Appellate Board agreed and found that the Claimant was entitled to an expedited hearing on the issue of entitlement to temporary disability benefits.

Expedited Hearing Orders

Monica Kleeberg v. Profit Line Services

Docket: 2015-01-0134

Judge: Thomas Wyatt

Claimant’s Counsel: Pro se

Employer/Carrier Counsel: Pro se

Briefly: Employer failed to appear through counsel or file any pleadings or records with the Court.  However, it argued unsuccessfully that by not withholding taxes, the Claimant was an independent contractor.

Summary: Court found that the Claimant’s affidavit identifying herself as an employee and identifying how her injury occurred was sufficient to entitle Claimant to medical benefits.  The Trial Court found that the Claimant was an employee pursuant to the Workers’ Compensation Act and she sustained a compensable injury.  Therefore, medical benefits were awarded, but TTD was not awarded because she had failed to prove any disability as the result of the injury. 

Sarah McIntosh v. Randstad

Docket: 2015-08-0106

Judge: Jim Umsted

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Blair Evans

Briefly: Only the physician chosen off the panel is to be treated as the ATP pursuant to T.C.A. § 50-6-204.  Therefore, only the panel selection’s opinion is given any presumption of correctness.  If the ATP chosen off the panel will not agree to evaluate, then a new panel should be issued.

Summary: In a prior REH order, the Trial Court ordered the Employer to provide medical benefit.  The Claimant chose Dr. Cannon at Campbell Clinic as her ATP, but Dr. Cannon referred her to Dr. Alday, an occupational medicine provider at Campbell Clinic to determine medical causation.  Dr. Alday found that in his opinion, the symptoms were not likely the result of any employment-related activity.  The Employee argued that Dr. Alday was not the ATP because he was not chosen from the panel. The Trial Court agreed and found that Dr. Cannon was the ATP, but he had refused to treat.  Therefore, the Employer was ordered to provide a new panel of physicians are who would agree to evaluate and, if necessary, treat.

Michael Wood v. Mac Constructors, LLC

Docket: 2015-06-0078

Judge: Ken Switzer

Claimant’s Counsel: Pro se

Employer/Carrier’s Counsel: Chad Jackson

Briefly: Physical altercation between employee and another individual was compensable because it arose out of the Claimant’s employment and while the Claimant was performing an act that was beneficial to his Employer.  

Summary: The Claimant was tasked with taking his work vehicle to a vehicle repair facility.  When obtaining the receipt, the Claimant was involved in a physical altercation with the clerk at the facility.  The accounts of how the altercation arose differed between the parties, but the Trial Court credited the Claimant and found his account credible.  Therefore, the Court found that this was an assault arising from a “neutral force” that bore a “rational, causal connection to his work with [Employer].”  The Court further stated that even if the Claimant was the aggressor, such injuries would still be compensable pursuant to Woods v. Woods Plumbing Co., 967 S.W.2d 768 (Tenn. 1998), which abrogated the aggressor defense.  Further, there was no evidence that the aggression constituted willful misconduct because there was no rule forbidding fighting. 

Allen Callison | Attorney