Bradshaw, Willis v. Jewell Mechanical , 2015 TN WC 43 ( 2015 )

FILED
May 6, 2015
n C O URT OF
WORKERS ' CO~t PE ~SATI O:\"
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Time: 7:15 A:\1
COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
WILLIS L. BRADSHAW, Docket No.: 2014-06-0056
Employee,
v. State File No.: 79765-2014
JEWELL MECHANICAL, LLC, Date of Injury: August 11, 2014
Employer,
And Judge: Pamela B. Johnson
FEDERATED MUTUAL INSURANCE,
Insurance Carrier.
EXPEDITED HEARING ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed on March 11, 2015, by Willis L. Bradshaw (Mr. Bradshaw),
pursuant to Tennessee Code Annotated section 50-6-239. The Court convened an evidentiary
hearing via teleconference on April 14, 2015. Upon review of Mr. Bradshaw' s Request for
Expedited Hearing, the evidence presented at the hearing, the arguments of counsel for the
parties, and in consideration of the applicable law, the Court enters the following order holding
that Mr. Bradshaw is not entitled to temporary disability or medical benefits.
Issues
Whether Mr. Bradshaw sustained a "new " injury or aggravation of a pre-existing injury
on August 11, 2014, arising primarily out of and in the course and scope of his employment with
Jewell Mechanical, LLC; or, in the alternative, whether Mr. Bradshaw 's injury of August 11,
2014, was a natural consequence or progression of his January 10, 2014 work injury; and,
If determined to be compensable under the Tennessee Workers ' Compensation Law,
whether Mr. Bradshaw is entitled to any past or future temporary disability benefits, and if so,
in what amount.
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Stipulations of the Parties
The parties, through counsel, announced to the Court the following stipulations:
• Mr. Bradshaw's workers' compensation rate is $637.31 per week.
• Mr. Bradshaw missed work from September 23, 2014, through October 21, 2014,
while receiving medical treatment for the alleged work injury.
Evidence Submitted
The Court designated the following as the Technical Record:
• Petition for Benefit Determination, filed November 6, 2015
• Dispute Certification Notice, filed December 10, 2015
• Request for Expedited Hearing, filed March 11, 2015
The Court did not consider attachments to the above filings unless admitted into evidence
during the Expedited Hearing. The Court considered factual statements in the above filings and
any attachments to them as allegations unless established by the evidence.
The Court admitted into evidence the following:
• EXHIBIT 1: Affidavit of Willis Bradshaw (2 pages)
• EXHIBIT 2: Affidavit of Certification of Records and Medical Records of
Dr. W. Blake Garside, Tennessee Orthopedic Alliance (111 pages)
• EXHIBIT 3: Prior Settlement Documents - Willis L. Bradshaw v. Jewell
Mechanical, LLC and Federated Mutual Insurance, Davidson County Chancery
Court, Docket: 14-914-III (9 pages)
• EXHIBIT 4: First Report of Work Injury, Form C-20, for January 10, 2014 date
of injury
• EXHIBIT 5: First Report of Work Injury, Form C-20, for August 11, 2014 date of
InJury
• EXHIBIT 6: Notice of Controversy, Form C-27, for August 11, 2014 date of
InJury
• EXHIBIT 7: Job Description
• EXHIBIT 8: Wage Statement, Form C-40, for August 11, 2014 date of injury
• EXHIBIT 9: Affidavit of Donna Biter (3 pages)
History of Claim
Mr. Bradshaw worked as a lead installer for Jewel Mechanical. See Exhibit 7. On
January 10, 2014, Mr. Bradshaw stepped from a scissor lift and experienced the immediate onset
of pain in his right knee. See Exhibit 4. Mr. Bradshaw timely reported the January, 2014 work
injury and received workers' compensation benefits. As a result of the January, 2014 work
injury, Dr. Blake Garside performed a right knee arthroscopy with partial medial meniscectomy,
debridement of lateral meniscus and ACL reconstruction. See Exhibit 2 at p. 64. Dr. Garside
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placed Mr. Bradshaw at maximum medical improvement on May 13, 2014, and assigned a
twelve percent (12%) permanent medical impairment to the right leg. See Exhibit 2 at pp. 19-20,
99. Mr. Bradshaw returned to work for Jewel Mechanical without restriction. Mr. Bradshaw
and Jewel Mechanical reached a settlement in the January, 2014 work injury claim for one and
one-halftimes (1.5x) the permanent medical impairment and Mr. Bradshaw retained the right of
reconsideration and lifetime future medical benefits for the right knee. See Exhibit 3.
On August 11, 2014, Mr. Bradshaw stepped from a scissor lift and again experienced the
immediate onset of pain in his right knee. See Exhibit 5. Mr. Bradshaw reported the incident to
his supervisor.
On August 26, 2014, Mr. Bradshaw returned to Dr. Garside for evaluation of his right
knee complaints. The August 26, 2014 office note provides the following history in pertinent
part:
Willis Bradshaw returns with complaints of right knee pain and
swelling for 1 week. He denies any recent injury or trauma. His
pain occurred after he got off a scissor lift. He denies falling. He
has had no locking or giving way. He has discomfort with
bending, twisting, walking, ascending or descending stairs. He has
noted some tightness. He has tried a Polar Pack with no relief of
his symptoms. He has been on no medications. He underwent
ACL reconstruction with partial meniscectomy on February 3,
2014. He was placed at MMI on May 13, 2014. I have not seen
him since then.
See Exhibit 2 at p. 21. Following physical examination, Dr. Garside diagnosed right knee
effusion and aspirated the right knee. Dr. Garside further prescribed Naprosyn for pain and
released Mr. Bradshaw to regular work duties and activities. A WorkLink Physician's Report
completed by Dr. Garside at the conclusion of the appointment identifies the "DOl" (date of
injury) as "01/10/2014." See Exhibit 2 at p. 106.
On September 16, 2014, Mr. Bradshaw returned to Dr. Garside. The September 16, 2014
office note provides the following history in pertinent part:
Willis Bradshaw returns today with complaints of persistent medial
pain. This has been present since Friday. He has been unable to
fully extend his knee or leg with walking. He has had increasing
pain and he feels as if he has had a recurrence in his swelling. Mr.
Bradshaw is 7-1/2 months status post right ACL reconstruction and
partial medial meniscectomy. He did well until three weeks ago
when he developed some increasing pain and discomfort after
stepping off a scissor lift.
See Exhibit 2 at p. 23. Dr. Garside noted marked mechanical symptoms and recurrent swelling
in the right knee. Mr. Bradshaw expressed concern about the possibility of recurrent meniscal
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tear versus osteochondral lesion involving the medial femoral condyle. Dr. Garside, therefore,
recommended an MRI of the right knee "to better evaluate his meniscal and ligamentous
structures at the present time and to evaluate his ACL reconstruction." !d. Dr. Garside advised
Mr. Bradshaw to continue regular duty. Dr. Garside completed a WorkLink Physician's Report
confirming the return to regular duty work and referral for an MRI. See Exhibit 2 at p. 105. The
WorkLink Physician's Report identifies the "DOl" as "01110/2014." !d.
On September 23, 2014, Mr. Bradshaw returned to see Dr. Garside for follow-up of his
right knee pain. Dr. Garside reviewed the MRI and "noted intact ACL reconstruction and no
retain of this medial meniscus." See Exhibit 2 at pp. 24, 41. Dr. Garside further noted "some
associated development of stress reaction and bone marrow edema." !d. Dr. Garside diagnosed
"right knee chondromalacia and stress injury right medial tibial plateau." !d. Dr. Garside placed
Mr. Bradshaw on restrictions of no climbing or squatting and instructed Mr. Bradshaw to return
in one month for re-evaluation of weight bearing and radiographs of the right knee. Dr. Garside
completed a WorkLink Physician's Report confirming the restrictions and setting a return
appointment. See Exhibit 2 at p. 104. The WorkLink Physician's Report identifies the "DOl" as
"01/10/2014." !d.
Jewel Mechanical filed a Notice of Controversy, Form C-27, on October 16,2014, stating
"Injury by accident vs. continuation of covered prior claim of 01110/2014 for same knee which
indemnity was settled and medicals left open for continued treatment" See Exhibit 6.
On October 21, 2014, Mr. Bradshaw saw Dr. Garside for follow-up of his "right tibial
stress fracture." See Exhibit 2 at p. 25. Mr. Bradshaw reported that he was "pain-free" at the
present time and anxious to return to work. !d. The report concerning imaging studies obtained
during the office visit stated "These reveal progressive medial compartment narrowing when
compared to January 2014 radiographs. His hardware is in place. There are no acute fractures
noted. There is no collapse along the medial compartment." !d. Dr. Garside released Mr.
Bradshaw to resume activities as tolerable, and instructed him to return in the future as needed.
Dr. Garside additionally completed a "WorkLink Physician's Report," indicating that Mr.
Bradshaw could "Return to Regular Duty on 10/22/2014." See Exhibit 2 at p. 103. The
WorkLink Physician's Report lists the "DOl" (date of injury) as "01/10/2014." !d.
Mr. Bradshaw, through counsel, filed a Petition for Benefit Determination on November
6, 2014, seeking temporary disability benefits. The parties did not resolve the disputed issues
through mediation and the Mediating Specialist filed the Dispute Certification Notice on
December 10, 2014. On March 11, 2015, Mr. Bradshaw filed a Request for Expedited Hearing,
asking this Court to find that a "new injury" occurred on August 11, 2014, and to award Mr.
Bradshaw temporary total disability for the period from September 23 through October 21, 2014.
Counsel for the parties appeared by telephone for the Expedited Hearing on April 14, 2015. Mr.
Bradshaw, for the Employee, and Donna Biter, for the Employer, testified by sworn affidavit.
See Exhibits 1 and 9 respectively.
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Employee's Contentions
Mr. Bradshaw contends that, on August 11, 2014, while performing his job duties in the
course and scope of his employment at Jewel Mechanical, he stepped off a scissor lift and
experienced the immediate onset of pain in his right knee. Mr. Bradshaw reported the "new
incident" to Jewel Mechanical. However, at that time, he thought he aggravated his January I 0,
2014 work injury so he returned to Dr. Garside for evaluation of his knee. Until he received the
diagnosis of a "new fracture" from his authorized treating physician, he was unaware that he
suffered a "new injury." Once Dr. Garside informed him that this was a new injury, and not an
aggravation of his previous injury, he notified Jewel Mechanical that this was a "new workers'
compensation injury." Jewel Mechanical denied his workers' compensation claim and failed to
accommodate his restrictions. As a result, he missed work from September 23, 2014, until
released to full duty by Dr. Garside on October 21, 2014. During this four (4) week period, he
received no pay or temporary disability benefits. See generally Exhibit 1.
Mr. Bradshaw argues that the MRI in September, 2014, first identified the "new injury"
and showed a stress fracture at the right medial/tibial plateau. The diagnosis following the
August 11, 2014 work incident is, therefore, different from the diagnosis made after the January
10, 2014 work incident. As shown on the diagnostic testing, Mr. Bradshaw sustained a new and
distinct injury. Therefore, Mr. Bradshaw claims entitlement to $2,640.28 in temporary total
disability benefits for the period from September 23 through October 21, 2014.
Employer's Contentions
Jewel Mechanical contends that, because of the January 10, 2014 work injury, Mr.
Bradshaw regularly experienced problems with his right knee during the summer of 2014. The
General Manager, Donna Biter, communicated with Mr. Bradshaw pertaining to his leg and how
his prior injury affected him on the job. However, Mr. Bradshaw did not advise Ms. Biter that he
sustained or claimed a new injury to his knee in August, 2014, or that he required treatment from
Dr. Garside in late August and early September, 2014. On September 29, 2014, Ms. Biter
received a modified duty work slip from Tennessee Orthopaedic Alliance with restrictions of no
climbing and no squatting, and contacted Mr. Bradshaw. During this telephone conversation,
Mr. Bradshaw could not recall the specific date that the alleged "new" injury occurred. Mr.
Bradshaw told Ms. Biter that "he was walking across the floor when he felt tightness in his
knee." Mr. Bradshaw provided two potential dates when the alleged "new" incident occurred,
but further verification revealed that he was not working on the dates provided. Ms. Biter
inquired further with Mr. Bradshaw and discussed his timesheets with him. Mr. Bradshaw then
picked a date at the job site where he thought the alleged incident occurred. See generally
Exhibit 9.
Jewel Mechanical avers that Mr. Bradshaw provided inconsistent histories to Dr. Garside.
On August 26, 2014, Mr. Bradshaw denied any recent injury or trauma. On September 16, 2014,
Mr. Bradshaw reported that his knee pain was "present since Friday." On September 23, 2014,
when Mr. Bradshaw returned to Dr. Garside after completing the MRI scan, there was no
reference to a new injury by Dr. Garside.
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Jewel Mechanical thus argues that Mr. Bradshaw failed to satisfy his burden ofproofthat
the August 11, 2014 work incident resulted in the advancement of an underlying condition or a
"new" injury. There is no document or statement from any physician opining that the August 11,
2014 work incident primarily caused the stress reaction, considering all causes. As such, Jewel
Mechanical maintains that it properly offered medical benefits through the open medicals
provision of the prior settlement, and properly denied temporary disability benefits for the
missed time in September and October, 2014.
Findings of Fact and Conclusions of Law
Standard Applied
The Workers' Compensation Law shall not be remedially or liberally construed in favor
of either party but shall be construed fairly, impartially, and in accordance with basic principles
of statutory construction favoring neither the employee nor employer. Tenn. Code Ann. 50-6-
116 (2014). Tennessee Code Annotated section 50-6-239(c)(6) provides that "[u]nless the
statute provides for a different standard of proof, at a hearing, the employee shall bear the burden
of proving each and every element of the claim by a preponderance of the evidence." Tenn.
Code Ann. section 50-6-239(c) (2014). A different standard of proof exists for the issuance of
interlocutory orders at Expedited Hearings than the standard of proof required at compensation
hearings. McCord v. Advantage Human Resourcing, No. 2014-06-0063 (Tenn. Work. Comp.
App. Bd., March 27, 2015). A Workers' Compensation Judge may enter an interlocutory order
for medical or temporary benefits upon a determination that the injured employee would likely
prevail at a hearing on the merits. Tenn. Code Ann. 50-6-239(d)(l) (20I4); McCall v. Nat'!
Health Care Corp., 100 S.W.3d 209, 214 (Tenn. 2003).
Factual Findings
The Court finds that, while working for Jewel Mechanical, Mr. Bradshaw stepped from a
scissor lift on or about August II, 2014, and experienced pain and swelling in his right knee. Mr.
Bradshaw initially believed that he aggravated his January, 2014 injury and returned to see his
authorized treating physician, Dr. Garside. Upon learning that the symptoms arising from the
August, 20I4 work incident possibly resulted in a "new" injury, Mr. Bradshaw timely reported
the August, 2014 work incident to Jewel Mechanical.
Application of Law to Facts
The Tennessee Workers' Compensation Act defines "injury" and "personal injury" as an
injury by accident,... arising primarily out of and in the course and scope of employment, that
causes death, disablement or the need for medical treatment of the employee; provided, that:
(A) An injury is "accidental" only if the injury is caused by a
specific incident, or set of incidents, arising primarily out of and in
the course and scope of employment, and is identifiable by time
and place of occurrence, and shall not include the aggravation of a
preexisting disease, condition or ailment unless it can be shown to
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a reasonable degree of medical certainty that the aggravation arose
primarily out of and in the course and scope of employment;
(B) An injury "arises primarily out of and in the course and scope
of employment" only if it has been shown by a preponderance of
the evidence that the employment contributed more than fifty
percent (50%) in causing the injury, considering all causes;
(C) An injury causes death, disablement or the need for medical
treatment only if it has been shown to a reasonable degree of
medical certainty that it contributed more than fifty percent (50%)
in causing the death, disablement or need for medical treatment,
considering all causes;
(D) "Shown to a reasonable degree of medical certainty" means
that, in the opinion of the physician, it is more likely than not
considering all causes, as opposed to speculation or possibility;
(E) The opinion of the treating physician, selected by the employee
from the employer's designated panel of physicians pursuant to §
50-6-204(a)(3), shall be presumed correct on the issue of causation
but this presumption shall be rebuttable by a preponderance of the
evidence.
Tenn. Code Ann. § 50-6-102(13) (2014).
In the present case, Mr. Bradshaw identified a specific incident, identifiable by time and
place. Mr. Bradshaw further demonstrated that the specific incident occurred while he performed
his job duties at Jewel Mechanical. The issue then turns to whether the August, 2014 incident
resulted in an injury arising primarily out of and in the course and scope of employment or
whether the incident resulted in an aggravation, arising out of and in the course and scope of
employment, and shown by a reasonable degree of medical certainty.
The general rule is that aggravation of a pre-existing condition may be compensable but
not if it results only in increased pain or other symptoms caused by the underlying condition.
Cunningham v. Goodyear Tire & Rubber Co., 811 S.W.2d 888, 891 (Tenn. 1991). An employer
is responsible for workers' compensation benefits, even though the employee may have been
suffering from a serious pre-existing condition or disability, but only if the employment causes
an actual progression or aggravation of the prior disabling condition or disease. Hill v. Eagle
Bend Mfg., Inc., 942 S.W.2d 483, 488 (Tenn. 1997); White v. Werthan Indus., 824 S.W.2d 158,
159 (Tenn. 1992); Talley v. Va. Ins. Reciprocal, 775 S.W.2d 587, 592 (Tenn. 1989). While it is
true that an employer takes the employee with all pre-existing conditions and cannot escape
liability when the employee, upon suffering a work-related injury, incurs disability greater than if
he or she had not had the pre-existing conditions; if work aggravates a pre-existing condition
merely by increasing pain, there is no injury by accident. Sweat v. Superior Indus., Inc., 966
S.W.2d 31, 32-33 (Tenn. 1998). To be compensable, the pre-existing condition must be
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advanced, there must be anatomical change in the pre-existing condition, or the employment
must cause an actual progression of the underlying disease. Id
In Trosper v. Armstrong Wood Prods., Inc., 273 S.W.3d 598 (Tenn. 2008), the Supreme
Court examined the issue of aggravation of a pre-existing injury or condition and clarified the
analysis to be applied in such cases, stating:
We believe that our holding in Smith's Transfer [Smith v. Smith's
Transfer Corp., 735 S.W.2d 221, 225-26 (Tenn.1987)], which we
have cited with approval on numerous occasions, see, e.g.,
Townsend [v. State], 826 S.W.2d [434,] 436 (Tenn. 1992],
provides the proper framework where an employee seeks
compensation on the grounds that a work injury has aggravated a
pre-existing injury or condition. We reiterate that the employee
does not suffer a compensable injury where the work activity
aggravates the pre-existing condition merely by increasing the
pain. However, if the work injury advances the severity of the pre-
existing condition, or if, as a result of the pre-existing condition,
the employee suffers a new, distinct injury other than increased
pain, then the work injury is compensable.
Trosper, 273 S.W.3d at 607. See also Poindexter v. Roadway Express, 2014 Tenn. LEXIS 695,
*8-9 (Tenn. Workers' Comp. Panel Sept. 29, 2014).
In this case, the MRI scan suggests a "new, distinct" stress reaction, not previously
identified on the diagnostic testing performed following the January, 2014 work incident.
However, each WorkLink Physician's Report issued following the August 11, 2014 work
incident identifies the date of injury as January 10, 2014. Further, Dr. Garside does not provide
an opinion within a reasonable degree of medical certainty that the August 11, 2014 work
incident caused a "new" injury arising primarily out of and in the course and scope of the
employment, or, in the alternative, that the August 11, 2014 work incident caused an aggravation
arising out of and in the course and scope of employment. In other words, Mr. Bradshaw failed
to demonstrate that the August 11, 2014 work incident caused a "new and distinct" injury or
"advanced the severity" ofthe pre-existing right knee injury. Therefore, based upon the evidence
presented at this time, the Court must conclude that Mr. Bradshaw is not likely to prevail at a
hearing on the merits.
IT IS, THEREFORE, ORDERED as follows:
1. The claim of Mr. Bradshaw against Jewell Mechanical or its workers' compensation
carrier for the requested temporary disability benefits is denied at this time.
2. This matter is set for Initial Hearing on June 24, 2015, at 9:00 a.m. central/ 10:00 a.m.
eastern time.
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ENTERED this the 6th day of May, 2015.
Workers' Compensation Judge
Initial Hearing:
An Initial Hearing has been set for June 24, 2015, at 9:00a.m. central/ 10:00 a.m. eastern,
with Judge Pamela B. Johnson, Court of Workers Compensation. You must call855-543-5041 or
toll free at 865-594-0091 to participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to participate. Failure to call in may
result in a determination of the issues without your further participation.
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal
the decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you
must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal".
2. File the completed form with the Court Clerk within seven (7) business days of the date
the Expedited Hearing Order was entered by the Workers' Compensation Judge.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The parties, having the responsibility of ensuring a complete record on appeal, may
request from the Court Clerk the audio recording of the hearing for the purpose of having
a transcript prepared by a licensed court reporter and filing it with the Court Clerk within
ten (1 0) calendar days of the filing of the Expedited Hearing Notice of
Appeal. Alternatively, the parties may file a statement of the evidence within ten (10)
calendar days of the filing of the Expedited Hearing Notice of Appeal. The statement of
the evidence must be approved by the Judge before the record is submitted to the Clerk of
the Appeals Board.
5. If the appellant elects to file a position statement in support of the interlocutory appeal,
the appealing party shall file such position statement with the Court Clerk within three (3)
business days of the filing of the Expedited Hearing Notice of Appeal, specifying the
issues presented for review and including any argument in support thereof. If the
appellee elects to file a response in opposition to the interlocutory appeal, appellee shall
do so within three (3) business days of the filing of the appellant's position statement.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to
the following recipients by the following methods of service on this the 6th day of May, 2015.
Name Certified Via Via Service sent to:
Mail Fax Email
Marshall McClarnon, III, X marshall @goncelaw.com
Esq.
D. Brett Burrow, Esq. X bburrow@.bkblaw.com
-~~
rrv1±:;;URT CLERK
wc.courtclerk@tn.gov
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