King, Joshua T. v. Compass Hearing and Air , 2016 TN WC 233 ( 2016 )

TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KNOXVILLE
JOSHUA T. KING, ) Docket No.: 2015-03-0886
Employee, )
v. )
COMPASS HEATING AND AIR, ) State File No.: 95439-2015
Employer, )
and )
THE HARTFORD, ) Judge Pamela B. Johnson
Carrier. )
EXPEDITED HEARING ORDER
GRANTING MEDICAL AND TEMPORARY DISABILITY BENEFITS
This matter came before the undersigned Workers' Compensation Judge on
September 16, 2016, on the Request for Expedited Hearing filed by Joshua T. King,
pursuant to Tennessee Code Annotated section 50-6-239 (20 15). The central legal issue
is whether Mr. King sustained an injury arising primarily out of and in the course and
scope of his employment with, Compass Heating and Air, entitling him to temporary
disability and medical benefits. For the reasons set forth below, the Court holds Mr. King
sufficiently demonstrated that he is likely to succeed at a hearing on the merits on the
central legal issue and awards the requested medical and temporary disability benefits. 1
History of Claim
Mr. King worked for Compass as a HVAC installer. Mr. King testified that while
lifting a unit into an attic, he experienced immediate pain in his left groin area and
developed a bulge. 2 The parties dispute the date of injury and the mechanism of injury.
As to the date of injury, Mr. King indicated the incident occurred on a Friday. In
1
A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
2
Mr. King stood during his testimony and demonstrated to the Court his body mechanics while pulling the unit onto
a landing into the attic space when he experienced pain in his groin, felt a tug, and developed the bulge.
1
his affidavit and in the Petition for Benefit Determination, Mr. King stated that the lifting
incident occurred on October 30, 2015. (Ex. 1.; T.R. 1.) However, during his testimony,
Mr. King indicated the lifting incident resulting in the bulge occurred on November 6,
2016. Mr. King e,'plained he gave conflicting dates of injury because he was not good
with dates. 3 Regardless of whether the incid nt occurred riday, October 30, or Friday
November 6, Mr. King testified he experienced pain, felt a pull, and developed a bulge
while at work for Compass. Mr. King stated his pain continued to worsen over the
remainder of the day. He further stated he had not previously developed a hernia or
bulge and nothing he did at home or elsewhere off the job led to the development of the
hernia or bulge.
During cross-examination of Mr. King, Compass challenged Mr. King's direct
testimony concerning a November 6, 2015 date of injury in light of his prior affidavit and
PBD listing an October 30, 2015 date of injury. However, the first report ofwork injury
prepared by Compass employee, Beth Corum, listed the "date of injury" as "11-6-15,"
listed the "date employer notified of injury" as "6-9-15," listed the "date last worked" as
"6-6-15," and noted Mr. King went to the emergency room on "11-6-15." Ms. Corum
not d she prepared th report on "12-2-15." See generally "" X. 7. Compass did not offer
ru1y testimony to explain the dates provided on the first report of work injury. 4
On the issue of notice provided to Compass of the work incident, Mr. King
testified he told his immediate supervisor, Jonathan Cody, and showed him the bulge the
same day. During Mr. Cody's testimony, he confirmed Mr. King told him that he
thought he hurt something after lifting the unit into the attic. Mr. Cody further confirmed
that he observed a knot near Mr. King's groin approximately the size of a golf ball. Mr.
Cody stated he told Mr. King to report the incident to Phyllis Lusk the next day. He
indicated it was apparent to him that Mr. King was hurt on the job. 5
Mr. King testified he reported the incident to Phyllis Lusk the following day
because no one was in the office when he returned to the shop the day of the injury. On
cross-examination, Mr. King admitted it may have been the following Monday when he
spoke with Ms. Lusk, who instructed him to take ibuprofen and rest for a few days. He
stated Ms. Lusk also directed him to a walk-in clinic for a drug test, which he said he
passed.
As to medical treatment, on Monday, November 9, Mr. King went to the
3
Mr. King additionally admitted that he suffered from a learning disability and could not read or write well.
4
The parties agreed to mark Exhibit 8 for identification purposes only. Neither party moved to introduce Exhibit 8
during the hearing. As such, this Court did not consider the contents of Exhibit 8 in reaching its findings of fact or
conclusions of law.
5
Compass offered the testimony of Mark Denton, who worked with Mr. King and Mr. Cody on the date of the
incident. Mr. Denton testified he was not aware of any injury suffered by Mr. King. He stated that he was working
below and pushing the unit up into the attic and could not see into the attic with the unit and platform in place. He
further admitted that he could not say whether Mr. King moved or lifted the unit and/or sustained any injury.
2
Em rgency Room at F rt Sanders Regional Medi cal Center "complaining of a knot on
his g nita Is s/p lifting ale unit while at work onset 3 days ago." (Ex. 9, p. 2 of The sl
attending physician, Dr. Michael B. Kennedy, discharged Mr. King with a diagnosis of
HJnguinal hernia, left side, acute." !d. at 3 of 5. Dr. Kenn dy prescrib d Tramadol for
pain and instructed Mr. King t follow-up with Jonathan Ray in one to Lw o da . Id. 7
When Mr. King attempted to make an appointment, Dr. Ray's office informed Mr.
King that Dr. Ray did not accept workers' compensation patients. (Ex. 1., p. 2.)
Compass provided Mr. King a panel of physicians, but later denied the claim. (Exs. 1, 4,
and 5.) Mr. King testified that his hernia was still present and painful.
Following the work incident, Mr. King testified he advised Compass he was
restricted to lifting no greater than ten pounds. He stated when he called Ms. Lusk to
discuss available light duty work, she said there was nothing for him to do. Since then,
he has been unable to work with the exception of a brief period of employment at IHOP
as a dishwasher.
Mr. King argued he sustained a work injury while in the course and scope of his
employment with Compass. He reported the incident, but Compass denied medical
treatment. He has been unable to work due to his work injury, but Compass did not pay
him temporary disability benefits. Mr. King asked this Court to order Compass to
provide him with medical and temporary disability benefits in accordance with the
Workers' Compensation Law.
Compass argued Mr. King failed to establish the prerequisites of Tennessee Code
Annotated section 50-6-212. It averred Mr. King offered inconsistent testimony
concerning the date of injury and thus cannot establish a specific incident that resulted in
a hernia. It further argued Mr. King failed to offer a medical opinion causally linking the
hernia to a work incident. Additionally, Compass argued that Mr. King failed to establish
entitlement to temporary disability benefits.
Findings of Fact and Conclusions of Law
The Court now turns to the legal principles it must apply to grant or deny Mr.
6
Compass objected to the introduction of Exhibit 9 pursuant to Rule 0800-02-21-.16(6)(b) (June, 20 15) of the
Tennessee Compilation Rules and Regulations. Compass argued the Court should strike any portion of Exhibit 9 not
signed by a medical doctor. This Court sustained the objection and considered only the portions of Exhibit 9
covered by the Provider Attestation electronically signed by Michael B. Kennedy, M.D.
7
Mr. King moved to introduce Mr. King's November 24, 2015 office visit at Family Care Specialists. Compass
objected to the introduction pursuant to Rule 0800-02-21-. 16(6)(b), arguing the copy does not contain the signature
of a physician. This Court marked the medical record as Exhibit I 0 for identification only and took the matter under
advisement. Upon consideration of Morgan v. Macy 's, et al., No. 2016-08-0270, 2016 TN Wrk. Comp. App. Bd.
LEX IS 39, at* 11-14 (Tenn. Workers' Comp. App. Bd. August 31, 20 16), this Court sustained the objection and did
not consider Exhibit 10 in reaching its findings of fact or conclusions of law.
3
King the benefits he requests. Mr. King need not prove every element of his claim by a
preponderance of the evidence in order to recover temporary disability and/or medical
benefits at an Expedited Hearing. McCord v. Advantage Human Resourcing, No. 2014-
06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp.
App. Bd. Mar. 27, 2015). Instead, he must come forward with sufficient evidence from
which this Court might determine he is likely to prevail at a hearing on the merits. !d.;
Tenn. Code Ann.§ 50-6-239(d)(1) (2015).
This lesser evidentiary standard does not relieve Mr. King of the burden of
producing evidence of an injury by accident that arose primarily out of and in the course
and scope of employment at an Expedited Hearing, but "allows some relief to be granted
if that evidence does not rise to the level of a 'preponderance of the evidence."'
Buchanan v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd.
LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). In analyzing whether
he met his burden, the Court will not remedially or liberally construe the law in his favor,
but instead shall construe the law fairly, impartially, and in accordance with basic
principles of statutory construction favoring neither Mr. King nor Compass. See Tenn.
Code Ann.§ 50-6-116 (2015).
With the above principles in mind, an injury must arise primarily out of and occur
in the course and scope of the employment to be compensable under the Workers'
Compensation Law. McCaffery v. Cardinal Logistics, No. 2015-08-0218, 2015 TN Wrk.
Comp. App. Bd. LEXIS 50, at *8-9 (Tenn. Workers' Comp. App. Bd. Dec. 10, 2015); see
also Tenn. Code Ann. § 50-6-102(14) (2015). The term "injury" is defined 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." !d. For an
injury to be accidental, it must be "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." Tenn. Code Ann. § 50-6-102(14)(A) (2015).
In the present case, Mr. King identified a specific incident, identifiable by time
and place that occurred while he performed his job duties at Compass. Mr. King
testified, while lifting a unit into an attic, he experienced immediate pain in his left groin
area and developed a bulge. There was conflicting testimony and evidence introduced
concerning the date of the work incident. Mr. King noted on the PBD and in his affidavit
an October 30, 2015 date of injury. During his testimony, he indicated the lifting incident
resulting in the hernia occurred on November 6, 2015. Mr. King explained that he has a
learning disability and is bad with dates. However, he indicated the lifting incident
occurred on a Friday as confirmed by Mr. Cody. Compass's First Report of Work Injury
listed a November 6, 2015 date of injury. The emergency room record confirmed
November 6, 2015, as the date of injury.
The issue then turns to whether the November 6, 2015 incident resulted in an
4
injury arising primarily out of and in the course and scope of employment. In McCord,
the Workers' Compensation Appeals Board analyzed the burden of proof required at the
Expedited Hearing stage and concluded:
We find, therefore, that an employee need not prove each and every
element of his or her claim by a preponderance of the evidence at an
expedited hearing to be entitled to temporary disability or medical benefits,
but must instead present evidence sufficient for the trial court to conclude
that the employee would likely prevail at a hearing on the merits in
accordance with the express terms of section 50-6-239(d)(l). A contrary
rule would require many injured workers to seek out, obtain, and pay for a
medical evaluation or treatment before his or her employer would have any
obligation to provide medical benefits. The delays inherent in such an
approach, not to mention the cost barrier for many workers, would be
inconsistent with a fair, expeditious, and efficient workers' compensation
system. See Tenn. Code Ann. § 4-3-1409(b)(2)(A) (2014). Moreover, we
note that since an expedited hearing is interlocutory in nature, either party
may present additional evidence at the final compensation hearing and ask
the trial court to reverse or modifY the interlocutory order.
!d. at *4.
In McCord, the Workers' Compensation Appeals Board further analyzed what act
or event triggers an employer's responsibility to provide a panel of physicians.
Specifically, the Workers' Compensation Appeals Board held, "[M]ere notice of an
alleged workplace accident, in and of itself, does not trigger an employer's duty to
provide medical benefits in every case, without regard to the particular circumstances
presented." !d. at *7. The employee offered testimony without contradiction that she felt
symptoms while lifting boxes, which resulted in two emergency room visits with similar
complaints, and a report of injury to the employer. !d. at * 15-17. The Appeals Board
concluded in McCord, "Employee's testimony, the exhibits, and the record as a whole
support[ed] the trial court's determination that Employee [was] entitled to a panel of
physicians."
Here, this Court must determine whether Mr. King is likely to prevail at a hearing
on the merits on the issue of entitlement to medical benefits, specifically a panel of
physicians. Mr. King testified, while lifting a unit into an attic, he experienced
immediate pain in his left groin area and developed a bulge. Mr. King testified that he
reported the incident to his supervisor, Mr. Cody, who confirmed a report of injury and
visually confirmed the bulge. Mr. King further stated he reported the lifting incident to
Ms. Lusk, sought emergency room treatment, and received a diagnosis of an acute
inguinal hernia. This Court finds Mr. King to be credible. Considering the testimony of
Mr. King and the evidence as a whole, this Court holds that Mr. King presented sufficient
5
evidence demonstrating that he is entitled to a panel of physicians.
Compass argued that Mr. King failed to satisfy Tennessee Code Annotated section
50-6-212 (20 15), wherein certain prerequisites must be definitely proven for entitlement
to compensation for a hernia or rupture resulting from an injury by accident arising
primarily out of and in the course and scope of employment. Benefits may be awarded
for a work-related hernia or rupture if: (1) There was an injury resulting in hernia or
rupture; (2) The hernia or rupture appeared suddenly; (3) It was accompanied by pain; (4)
The hernia or rupture immediately followed the accident; and (5) The hernia or rupture
did not exist prior to the accident for which compensation is claimed. Tenn. Code Ann. §
50-6-212(a) (2015).
Here, King testified, while lifting a unit into an attic, he experienced immediate
pain in his left groin area and developed a bulge, which the emergency room attending
physician diagnosed as an acute inguinal hernia. Mr. King further testified without
contradiction that he did not have a hernia before the lifting incident. Accordingly, this
Court concludes that Mr. King provided sufficient evidence demonstrating he is likely to
prevail at a hearing on the merits concerning whether he suffered a compensable hernia
pursuant to section 50-6-212(a). Therefore, Compass shall provide Mr. King a panel of
physicians from which he may select an authorized treating physician to evaluate and
treat his hernia.
The next issue this Court must consider is Mr. King's eligibility for temporary
disability benefits. An injured employee is eligible for temporary total disability benefits
if: (1) the worker became disabled from working due to a compensable injury; (2) there is
a causal connection between the injury and the inability to work; and (3) the worker
established the duration of the period of disability. Jones v. Crencor Leasing and Sales,
No. 2015-06-0332, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Tenn. Workers'
Comp. App. Bd. Dec. 11, 2015) (citing Simpson v. Satterfield, 564 S.W.2d 953, 955
(Tenn. 1978)). Temporary total disability benefits are terminated either by the ability to
return to work or attainment of maximum recovery. Jd.
Temporary partial disability benefits are available when the temporary disability is
not total. !d.; see also Tenn. Code Ann. § 50-6-207(1)-(2) (2015). "Temporary partial
disability refers to the time, if any, during which the injured employee is able to resume
some gainful employment but has not reached maximum recovery." Jd. Thus, in
circumstances where the treating physician has released the injured worker to return to
work with restrictions prior to maximum medical improvement, and the employer either
(1) cannot return the employee to work within the restrictions or (2) cannot provide
restricted work for a sufficient number of hours and/or at a rate of pay equal to or greater
than the employee's average weekly wage on the date of injury, the injured worker may
be eligible for temporary partial disability. !d.
6
Mr. King admitted on cross-examination the emergency room placed lifting
restrictions of no greater than ten pounds and he relayed the restrictions to Compass. He
further admitted that Compass provided him an opportunity to return to work on light
duty. However, he testified without contradiction that when he called Ms. Lusk to
discuss the light duty work, she told him there was nothing for him to do. With the
exception of a brief period of employment at IHOP as a dishwasher, Mr. King stated that
he did not work after the lifting incident resulting in the hernia at Compass. This Court
concludes Mr. King demonstrated he is likely to prevail at a hearing on the merits
regarding entitlement to temporary partial disability benefits. Therefore, Compass shall
pay Mr. King temporary partial disability benefits from the last date he worked for
Compass, to the present, taking into consideration his brief employment at IHOP during
this period. Compass shall continue to pay Mr. King temporary disability benefits in
accordance with Tennessee Code Annotated section 50-6-207 (20 15).
IT IS, THEREFORE, ORDERED as follows:
1. Compass shall provide Mr. King with medical treatment made reasonably
necessary by the November 6, 2015 injury and in accordance with Tennessee
Code Annotated section 50-6-204 (20 15). Compass shall provide Mr. King with a
panel of physicians from which he may select an authorized treating physician.
2. The amount of temporary disability benefit is $231.04 per week based on Mr.
King's average weekly wage of$346.55.
3. Compass shall pay Mr. King temporary partial disability benefits from the last
date he worked for Compass, to the present, taking into consideration his brief
employment at IHOP during this period. Compass shall continue to pay Mr. King
temporary disability benefits in accordance with Tennessee Code Annotated
section 50-6-207 (2015).
4. This matter is set for an Initial (Scheduling) Hearing on December 6, 2016, at
9:30 a.m. Eastern Time. The parties must call 865-594-0091or 855-543-5041
toll free to participate in the Initial Hearing. Failure to appear by telephone may
result in a determination of the issues without your further participation.
5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
(2015). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau by email to
W Complian .Program@tn.gov no later than the seventh business day after
entry of this Order. Failure to submit the necessary confirmation within the period
of compliance may result in a penalty assess1:11ent for non-compliance.
7
6. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit by email at W Compliance.Program@tn.gov or by telephone at
(615) 253-1471 or (615) 532-1309.
Workers' Compensation Judge
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 business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of Indigency
in accordance with this section shall result in dismissal of the appeal.
5. 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 calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
8
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.
APPENDIX
Technical Record:
• Petition for Benefit Determination, filed December 18, 2015;
• Dispute Certification Notice, filed January 28, 2016;
• Show Cause Order, entered May 18, 20 16;
• Order, entered June 2, 2016; and
• Request for Expedited Hearing, filed June 3, 2016.
The Court did not consider attachments to Technical Record filings unless
admitted into evidence during the Expedited Hearing. The Court considered factual
statements in these filings or any attachments to them as allegations unless established by
the evidence.
Stipulation of act:
• The parties agreed that Mr. King's average weekly wage was $346.55 at the
time of the alleged work injury, which correlates to a workers' compensation
rate of $231.04 per week.
9
Exhibits:
• EXHIBIT 1: Affidavit of Joshua T. King;
• EXHIBIT 2: Affidavit of Jonathan D. Cody;
• EXHIBIT 3: Wage Statement, Form C-41; and
• EXHIBIT 4: Notice of Denial of Claim for Compensation, Form C-23;
• EXHIBIT 5: Choice ofPhysician, Form C-42;
• EXHIBIT 6: Post-Accident Urine Drug Screen;
• EXHIBIT 7: Employer's First Report of Work Injury or Illness;
• EXHIBIT 8 (Marked for Identification Purposes Only): Unsworn Statement of
Phyllis Lusk, dated December 2, 2015;
• EXHIBIT 9: Medical Records from Fort Sanders Regional Medical Center;
and
• EXHIBIT10 (Marked for Identification Purposes Only): Medical Record from
Family Care Specialist.
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 5th day of
October, 2016.
Name Certified Via Via Service sent to :
Mail Fax Email
Martin Ellis, Esq., X mel! is@ellisandellislaw. com
Employee's Counsel
Joseph W. Ballard, Esq., X josegh. ballard@thehartford. com
Employer's Counsel
PENNY SHRUM, Court Clerk
WC.CourtClerk@tn.gov
10