Hardin, Chris v. Dewayne’s Quality Metals

IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT JACKSON

Chris Hardin, ) Docket No.: 2015-07-0067 Employee, ) v. ) State File No.: 28439-2015 Dewayne's Quality Metals, ) Employer, ) Judge Allen Phillips And ) Accident Fund, ) Insurance Carrier. )

EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS AND DENYING TEMPORARY DISABILITY BENEFITS

This matter came before the undersigned Workers' Compensation Judge upon the Request for Expedited Hearing filed by the Employee, Chris Hardin, pursuant to Tennessee Code Annotated section 50-6-239 (2014). Mr. Hardin seeks medical and temporary disability benefits for an alleged gradual injury to both arms. The employer, Dewayne's Quality Metals, contends that Mr. Hardin did not sustain an injury arising primarily out of his employment. 1 For the following reasons, the Court determines Mr. Hardin carried his burden of proof and demonstrated that he is entitled to medical benefits for evaluation of his alleged injuries, but that he is not entitled to temporary disability benefits at this time.

History of Claim

Mr. Hardin is a fifty-four year-old resident of Henderson County, Tennessee. He worked for Dewayne' s as a "rack line operator," hanging and manipulating metal parts of various sizes on a moving production line. He described his work as repetitive and hand- intensive. For several years prior to the events in question, Mr. Hardin complained of arthritic pain in his hands and arms. He testified he related these arthritic problems to his supervisor, John McMullen, for several months prior to the medical treatment at issue in this case. 1 Additional information regarding the technical record and exhibits admitted at the Expedited Hearing is attached as an Appendix.

According to the medical records, Mr. Hardin required hospitalization in September 2014, for renal impairment, dehydration, and Type II diabetes. He also reported "hand joint pain." The diagnoses of diabetes and hand joint pain continued after his hospitalization so Mr. Hardin followed up with his primary care physician, Dr. Kevin Stroup, who recommended an EMG study by Dr. Ronald Bingham in Jackson, Tennessee.

On December 29, 2014, Mr. Hardin saw Dr. Bingham and reported a "several year history of constant severe bilateral hand and foot numbness." (Ex. 7.) The condition in his hands was "exacerbated ... by general use of [his] hands." !d. The testing revealed diabetic neuropathy and superimposed bilateral carpal tunnel syndrome and ulnar nerve neuropathy at the elbows. !d. On cross-examination, Mr. Hardin testified Dr. Bingham advised him that the nerve findings in his arms were the result of his repetitive work at Dewayne's. Following the appointment and testing with Dr. Bingham, Mr. Hardin provided the medical record from the visit to Mr. McMullen and told Mr. McMullen that his arm conditions were work-related.

After the testing, Dr. Stroup referred Mr. Hardin to Dr. Harold Antwine, an orthopedic surgeon in Jackson. In his history to Dr. Antwine on January 6, 2015, Mr. Hardin reported a "longstanding history of bilateral hand pain." (Ex. 4.) He told Dr. Antwine he had performed the same job for three years, and that he had pain for two of those years. Dr. Antwine noted the EMG results and opined that Mr. Hardin may require surgery for his nerve entrapments. On January 27, 2015, Dr. Antwine recommended a carpal tunnel release and an ulnar nerve transposition on the right arm. Mr. Hardin underwent surgery on March 9, 2015.

On March 3, 2015, Mr. Hardin applied for medical leave at Dewayne's. He testified that he did not realize that the documents provided him by· Kay Wood, the Human Resources representative, were Family Medical Leave Act (FMLA) paperwork rather than workers compensation paperwork. He testified Ms. Wood "acted like she did not know what he was talking about" when he mentioned reporting his injury to Mr. McMullen in December 2014. After approval of FMLA leave, De Wayne's placed Mr. Hardin off work since March 9, 20 15 without pay. When his FMLA expired on June 2, 2015, Dewayne's terminated Mr. Hardin. (Ex. 5.)

On April 16, 2015, Ms. Wood contacted Mr. Hardin to determine his medical status. The next day, April 17, 2015, Mr. Hardin went to Dewayne's and completed an accident report. The report noted he was injured on December 2, 2014, while "hanging parts." (Ex. 9.) The report further noted he "did not know what to do" in response to the question, "why was this injury not reported on the date of injury?" !d.

Dewayne's carrier completed a First Report of Work Injury and provided a panel

of physicians, including Dr. Stroup, in April2015. (Ex. 3.) Mr. Hardin chose Dr. Stroup from the panel. There is no proof that Dewayne's, or its carrier, ever set an appointment with Dr. Stroup. The carrier denied the claim, asserting that the alleged injuries did not arise primarily out of the employment.

Mr. Hardin filed a Petition for Benefit Determination (PBD) on April 16, 2015, seeking medical and temporary disability benefits. The parties did not resolve the disputed issues through mediation, and the Mediation Specialist filed the Dispute Certification Notice on May 15, 20 15. The Court conducted an Expedited Hearing on September 3, 2015. Mr. Hardin was the only witness.

Findings of Fact and Conclusions of Law

Under the Tennessee Workers' Compensation Law, 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." Tenn. Code Ann. § 50-6-102(13)(A) (2014). "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[.]" Tenn. Code Ann. § 50-6- 102(13)(B) (2014).

Dewayne's correctly asserts that Mr. Hardin has not shown his injury arose primarily out of and in the course and scope of his employment by the medical records in evidence. The missing element is medical causation because the medical providers failed to provide a favorable causation opinion. However, the lack of a causation opinion is not immediately fatal to Mr. Hardin's request for benefits. Enforcing a burden of proving his injury by a preponderance of the evidence at an Expedited Hearing would yield the unreasonable result of prohibiting Mr. Hardin from receiving medical care for his bilateral arm conditions without first securing an expert opinion on medical causation. In contrast, our Appeals Board described an employee's burden at an Expedited Hearing as follows:

[A ]n 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)( 1). 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).

McCord, at *9-10.

In this case, Mr. Hardin testified he worked in a repetitive job for Dewayne's for several years. Dewayne's required him to handle, move, and hang metal parts on a moving line. Dr. Antwine noted that Mr. Hardin performed the same employment duties for two years. On December 29, 2014, Dr. Bingham diagnosed him with peripheral neuropathy, likely secondary to his diabetes. However, Dr. Bingham also noted that it was his "opinion that [Mr. Hardin] is likely suffering from superimposed entrapment of the median nerve at both wrists and the ulnar nerve at both elbows." (Ex. 7.) At the Expedited Hearing, Dewayne's counsel elicited testimony from Mr. Hardin regarding who might have told him his carpal tunnel was work-related. Mr. Hardin responded that Dr. Bingham told him as much. 2 This bolsters the written opinion of Dr. Bingham that Mr. Hardin has superimposed entrapment on his diabetic peripheral neuropathy.

Dewayne's argues that Mr. Hardin's purported delay in reporting any injury is an indication that the injury is not work-related. In other words, because Mr. Harding had issues for several years, and elected to apply for FMLA benefits, he tacitly admitted his condition was not work-related. He only asserted a work-relation by the filing of the PBD in April 2015. The Court rejects Dewayne's argument. Tennessee Code Annot"ated section 50-6-20l(b) (2014) provides:

In those cases where the injuries occur as the result of gradual or cumulative events or trauma, .then the injured employee or the injured employee's representative shall provide notice of the injury to the employer within thirty (30) days after the employee: ( 1) Knows or reasonably should know that the employee has suffered a work-related injury that has resulted in permanent physical impairment; or (2) Is rendered unable to continue to perform the employee's normal work activities as the result of the work-related injury and the employee knows or reasonably should know that the injury was caused by work-related activities.

Thus, employees who suffer gradually occurring injuries are relieved from the notice requirement until- they know or reasonably should know that their injury was caused by their work and that the injury has either impaired them permanently or has prevented them from performing normal work activities. Banks v. United Parcel Serv., Inc., 170 S.W.3d 556, 561 (Tenn. 2005). Additionally, an employee who sustains a 2 Dewayne's, after Mr. Hardin answered its question, objected to the response as being hearsay. The Court overruled said objection and noted that Dewayne's counsel solicited Mr. Hardin's response. Notwithstanding, the answer is not dispositive to the ultimate finding herein, that Mr. Hardin is entitled to further evaluation as to causation.

gradually occurring injury may be unsure of the cause of his injury and therefore relieved of the notice requirement until a physician confirms the diagnosis. !d. (citing Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d 164, 169 (Tenn. 2002)).

In this case, Mr. Hardin testified, without contradiction, that he reported his injury to Mr. McMullen, his supervisor, on December 29, 2014. Mr. Hardin, suffering from a gradually occurring injury, need not have reported sooner. By statute and case law, he was relieved from reporting until he learned of his diagnosis on December 29, 2014, the date he was diagnosed with carpal tunnel by Dr. Bingham. Likewise, considering the uncontroverted testimony that Dr. Bingham indicated a work-relation to Mr. Hardin, December 29, 2014, was also the first time that Mr. Hardin had knowledge of his diagnosis having a possible relation to his work. Dewayne's concedes that it can show no prejudice by any alleged late reporting. The Court agrees and finds that Mr. Hardin gave adequate notice of an injury.

The Court finds Mr. Hardin credible. Regardless, Dewayne's offered no countervailing testimony to refute his description of his reporting of the injury to both Mr. McMullen and Ms. Wood.

Medical benefits

When an employee reports an injury, Tennessee law requires an employer to provide "free of charge to the employee such medical and surgical treatment ... made reasonably necessary by accident as defined in this chapter[.]" Tenn. Code Ann. § 50-6- 204(a)(l)(A) (2014). "The nature and extent of an employee's injuries, and the issue of medical causation, usually come to light in the course of treatment of the employee's injuries." Quaker Oats v. Smith, 574 S.W.2d 45, 48 (Tenn. 1978). Here, having reported an injury, Mr. Hardin is entitled to evaluation of same. The approved physician might then opine as to the cause of his condition. Thus, he has yet to present sufficient evidence from which the Court might conclude he is likely to prevail at a hearing on the merits on the issue of outstanding medical bills. In the absence of an opinion as to causation, the Court cannot order payment of any outstanding medical bills for treatment rendered to Mr. Hardin to date.

Temporary disability benefits

Temporary total disability (TTD) is payable to an injured employee who is totally disabled to work by her injury and while she is recovering as far as the nature of the injury permits. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 776 (Tenn. 2000). Under Tennessee law, to establish entitlement to temporary total benefits, the employee must show he was "(1) totally disabled to work by a compensable injury; (2) that there was a causal connection between the injury and his inability to work; and (3) the duration of that period of disability." !d.; Jewell v. Cobble Construction and Arcus Restoration, No.

2014-05-003, 2015 TN Work. Comp. App. Bd. LEXIS 1, at *21 (Tenn. Workers' Comp. App. Bd. Jan. 12, 2015). When an employee demonstrates the ability to return to work or attains maximum medical improvement, then TTD benefits are terminated. Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978); Jewell, at 21.

Temporary partial disability (TPD) refers to the time during which the injured employee is able to resume some gainful employment but has not yet reached maximum recovery. Williams v. Saturn Corp., No. M2004-01215-WC-R3-CV, 2005 Tenn. LEXIS 1032, at *3 (Tenn. Workers' Comp. Panel Nov. 15, 2005). As with TTD, there must be adequate proof of a causal connection between the injury and the disability for an award ofTPD.

To date, Mr. Hardin has not shown by expert medical evidence a causal connection between his injuries and his inability to work. Although Dewayne' s does not contest the period of temporary disability or Mr. Hardin's inability to work during that period, the requirement of causation has yet to be satisfied. Thus, he has yet to present sufficient evidence from which the Court might conclude he is likely to prevail at a hearing on the merits on the issue of temporary disability benefits. Mr. Hardin would be entitled to temporary disability benefits from March 13, 2015, forward and ongoing, should an authorized treating physician opine a causal connection between his work and his disability.

IT IS, THEREFORE, ORDERED as follows:

1. Dewayne's or Accident Fund shall provide Mr. Hardin with medical treatment for his injuries as required by Tennessee Code Annotated section 50-6-204 (2014), to be initiated by Dewayne's or Accident Fund providing Mr. Hardin with a panel of physicians as required by statute to evaluate Mr. Hardin and render an opinion as to the causation of his bilateral arm injuries. Dewayne's may again tender the original panel to Mr. Hardin or present a new panel for selection of the approved provider. Medical bills shall be furnished to Accident Fund by Mr. Hardin or the medical providers.

2. Mr. Hardin's claim for payment of outstanding medical bills is denied at this time. 3. Mr. Hardin's claim for temporary disability benefits is denied at this time.

4. This matter is set for a Scheduling Hearing on November 17, 2015, at 9:00 a.m. Central Time.

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 6 .

Annotated section 50-6-239(d)(3) (2014). The Insurer or Self-Insured Employer must submit confirmation of compliance with this Order to the Bureau by email to WCCompliance.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 assessment for non-compliance.

6. For questions regarding compliance, please contact the Workers' Compensation Compliance Unit via email W Compliance. Program c ,tn.gov or by calling (615) 253-1471 or (615) 532-1309.

ENTERED this the 2"d day of Oc o

Judge Allen Philli s Court of Workers' Co

Initial Hearing:

A Scheduling Hearing has been set with Judge Allen Phillips, Court of Workers' Compensation Claims. You must call 731-422-5263 or toll-free at 855-543- 5038 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. All conferences are set using Central Time (CT).

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 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 three 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 three 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.

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 the211.<tday of October, 2015.

Certified Via Via Name Mail Fax Email Service sent to:

Chris Hardin, 110 Rose Lawn Dr., Em_Q_loyee X X Lexington, TN 38351 Gordon Aulgar, Esq. Em_Qloyer's Attorney X Gordon. aulg~r@accidentfund.com

Penny Shn'r~ Clerk of Court Court of Wipfkcrs' Compensation Claims WC.CourtCierk@tn.gov

APPENDIX

Exhibits: 1. Wage Statement 2. First Report of injury, June 17, 2015 3. C42 Panel ofPhysicians 4. Medical Records of Dr. Harold Antwine 5. March 18, 2015 letter from Kay Wood 6. Choice ofPhysicians, April21, 2015 7. Collective Bills from Jackson Madison County General Hospital, West TN Bone and Joint, Professional Anesthesia Associates, Bingham EMG Clinics, and Willow Emergency Physicians, 8. Medical Records of Dr. Ronald Bingham 9. Application for Family Medical Leave Act. 10. Employee's Injury Report, April 16, 2015 11. Mr. Hardin's Job Description 12. Medical Records of Dr. Stroup

Technical record: 1. Petition for Benefit Determination, June 11, 2015 2. Dispute Certification Notice, July 27, 2015 3. Request for Expedited Hearing, July 27, 2015 3

3 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.