Backer, Martin v. Azuma Leasing Company

FILED

July 2, 2015

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COURT OF WORKERS' COMPENSATION CLAIMS

AT KNOXVILLE

MARTIN BACKER, Docket No.: 2015-06-0023

Employee,

v. State File No.: 94424-2014

AZUMA LEASING COMPANY, Date of Injury: November 18, 2014

Employer,

And Judge: Pamela B. Johnson

TRAVELERS INSURANCE COMPANY,

Insurance Carrier.

EXPEDITED HEARING ORDER

THIS CAUSE came before the undersigned Workers' Compensation Judge upon the

Requests for Expedited Hearing filed separately by the parties, through counsel, on March

17, 2015, pursuant to Tennessee Code Annotated section 50-6-239 (2014). This Court

conducted an in-person, evidentiary hearing on May 8, 2015. Upon review of the Requests

for Expedited Hearing, the evidence presented at the hearing, the arguments of counsel, and

in consideration of the applicable law, the Court finds Mr. Backer is not entitled to the

benefits requested.

ANALYSIS

Issues

Whether Mr. Backer sustained an injury arising primarily out ofand in the course and

scope of employment with Azuma Leasing;

Whether Mr. Backer provided adequate notice to Azuma Leasing ofan alleged injury

during his employment with Azuma Leasing;

Whether Mr. Backer is entitled to past or future medical expenses; and

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Whether Mr. Backer is entitled to any past or future temporary disability benefits, and

if so, in what amount.

Evidence Submitted

The Court designated the following as the Technical Record:

• Petition for Benefit Determination (PBD), filed January 15, 2015,

• Dispute Certification Notice (DCN), filed March 17, 2015,

• Mr. Backer's Request for Expedited Hearing, filed March 17, 2015,

• Azuma's Request for Expedited Hearing, filed March 17, 2015, and

• Order of Transfer, entered Apri110, 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: Certification and Medical Records and Expenses of Sweeney

Chiropractic (20 pages),

• EXHIBIT 2: Certification and Medical Records ofTriStar Horizon Medical

Center (64 pages),

• EXHIBIT 3: First Report of Work Injury, Form C-20,

• EXHIBIT 4: Choice of Physicians, Form C-42,

• EXHIBIT 5: Wage Statements, Form C-41 with Earning Statements attached

(4 pages),

• EXHIBIT 6: Notice ofDenial of Claim for Compensation, Form C-23,

• EXHIBIT 7: Mr. Backer's Signed Statement, dated December 8, 2014,

• EXHIBIT 8: Separation Notices, dated December 8, 2014, and December 9,

2014, (2 pages),

• EXHIBIT 9: Job Description (2 pages),

• EXHIBIT 10: Mr. Backer's Employment Application (2 pages),

• EXHIBIT 11: Portions of Azuma's Company Policies (6 pages),

• EXHIBIT 12: DMN Corporation Payroll Record, for pay period beginning

November 15 through 28, 2014,

• EXHIBIT 13: Letter from Mary Becerra to Mr. Backer, dated December 3,

2014,

• EXHIBIT 14: Mr. Backer's Responses to Written Discovery, dated April15,

2015, and April27, 2015,

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• EXHIBIT 15: Mr. Backer's Criminal Record of Davidson County Criminal

Court Clerk and Officer's Affidavit (2 pages), 1

• EXHIBIT 16 (Marked for Identification Only): Mr. Backer's November 18,

20 14 Schedule, 2 and

• EXHIBIT 17: Mr. Backer's Recorded Statement. 3

For purposes of the Expedited Hearing, the parties stipulated to an average weekly

wage of $775.00 per week.

The following individuals offered testimony at the Expedited Hearing:

• Martin Backer,

• Rebecca McGuire,

• Mary Becerra, Azuma's Corporate Representative,

• Doug Tibbs, Jr.,

• Bryan Cobb, and

• Scott Lewis, Traveler's Insurance's Corporate Representative.

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Mr. Backer's attorney objected to the introduction of Exhibit 15 on the basis that Azuma's attorney failed to furnish a

copy of Mr. Backer's Criminal Record and the Officer's Affidavit in advance of the hearing. Azuma's attorney

responded that it is not required to provide a readily available, public record used to impeach a witness's statement made

under oath. During the hearing, the Court marked Exhibit 15 for identification purposes only and took the matter under

advisement. This Court overrules the objection and admits the Criminal Record and Officer's Affidavit for impeachment

purposes. See Tenn. R. Evict. 613(b) (permitting extrinsic evidence of a prior inconsistent statement by a witness for

impeachment purposes); Davis v. Hall, 920 S.W.2d 213, 216-17 (Tenn. Ct. App. 1995) ("In order for a statement to be

used to impeach a witness, the statement must be inconsistent with the statement given at trial." (emphasis added)).

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Mr. Backer's attorney objected to the admissibility of Exhibit 16 on the basis that Azuma's attorney failed to furnish a

copy of the November 18,2014 schedule in advance of the hearing and further objected to its admissibility as a business

record. Azuma's attorney responded that Ms. Becerra's testimony established that the schedule was a business record.

During the hearing, the Court marked Exhibit 16 for identification purposes only and took the matter under advisement.

This Court now sustains the objection of Mr. Backer's attorney and excludes Exhibit 16 from the record. See Tenn.

Comp. R. & Regs. 0800-02-21-.14(l)(b )(2014) ("[I]n no event later than five (5) business days after the motion [for

expedited hearing] is filed with the clerk, the opposing party shall submit all information in its possession demonstrating

that the employee is not entitled to temporary disability or medical benefits.")

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Mr. Backer's attorney objected to the admissibility of Exhibit 17 based on hearsay because the witness, through whom

Azuma attempted to introduce the recorded statement, did not take Mr. Backer's recorded statement and neither the

testifying witness nor the adjuster identified in the recorded statement transcribed the recorded statement. Azuma's

attorney responded that Mr. Backer admitted that he gave a recorded statement and admitted that everything he stated in

the recorded statement was true and accurate. During the hearing, the Court marked Exhibit 17 for identification

purposes only and took the matter under advisement. This Court now overrules the objection, finds the Recorded

Statement falls under the Hearsay Exception for Records of Regularly Conducted Activity, and admits the Recorded

Statement into evidence. See Tenn. R. Evict. 803(6) (2014).

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History of Claim

Mr. Backer worked for Azuma Leasing Company (Azuma) as a delivery driver and

installer. See PBD. On November 18, 2014, Mr. Backer allegedly sustained an injury to his

neck and back, while "taking a 3 50 pound stackable washer and dryer up one flight of stairs."

!d. Mr. Backer continued working that day and returned to work on November 19, 20, 21,

and 24,2014. On the morning ofNovember 25,2014, Mr. Backer dressed for work, sneezed

several times and reached for allergy medication from a cabinet at his home, when he

experienced pain in his neck, back, and his "body locked up."

Mr. Backer sought treatment from Dr. Jim Sweeney of Sweeney Chiropractic on

November 25, 2014. During the visit, Mr. Backer advised Dr. Sweeney that he experienced

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neck pain radiating into the upper back due to a work-related accident. See Exhibit 1, p. 5.

The office note listed the onset as "acute" and the cause of symptoms as "unknown." !d. Dr.

Sweeney diagnosed "Displacement Of Cervical Disc Without Myelopathy," "Spasm Of

Muscles," "Cervicalgia," and "Pain In Thoracic Spine." !d. He recommended treatment

three times per week for one month. !d. On November 26, 2014, he recommended that Mr.

Backer take off work the entire week. See Exhibit 1, p. 7. Dr. Sweeney continued his off

work recommendation during the December 1, 2014 visit. See Exhibit 1, p. 9.

On December 4, 2014, he noted that Mr. Backer felt "slightly better" with "an

improved ROM." See Exhibit 1, p. 11. Dr. Sweeney further noted that Mr. Backer expressed

concern about "working with this condition because he does not want to get worse." !d. On

December 8, 2014, he again recommended that Mr. Backer take off work the entire week.

See Exhibit 1, p. 15. On December 12, 2014, he recorded that Mr. Backer experienced

"another drop in pain" and felt "better," noting that "the pain in the upper back is better but

the neck still hurts." See Exhibit 1, p. 16. The last office note contained in Exhibit 1 is dated

December 16, 2014.

By letter dated April28, 2015 to Mr. Backer's attorney, Dr. Sweeney stated:

Mr. Backer was treated for a workman's comp injury from

11125/2014- 12/16/2014. The injury occurred a few day (sic)

prior to his first treatment. He was moving an object at work

and he felt a very sharp pain. He thought the pain would go

away on its own but [it] kept getting worse. His symptoms

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Mr. Backer's attorney filed a Notice of Filing of Chiropractic Records and Report on April30, 2015. Pursuant to Tenn.

Comp. R. & Regs. 0800-02-21-.16(6)( c)(20 14), Mr. Backer's attorney filed a Corrected Notice ofFiling of Chiropractic

Records and Report on May 4, 2015, wherein the chiropractic records contained page numbers in the lower, right-hand

corner. The corrected, numbered version did not contain a page "0005." This Court replaced the missing page 0005 with

the same page from the unnumbered, original version and added "0005" to the lower, right-hand corner of the page for

ease of identification by this Court and the parties.

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decrease when sitting still. He was very nervous about working

with this condition. I requested Mr. Backer to take work off for

the next two weeks due to the fear of causing more damage.

I have diagnosed Mr. Backer with cervical sprain/strain and

mild discopathy due to the trauma he sustained with lifting an

object at work. The medical bills were consistent with this type

of injury. I explained to Mr. Backer that if he did notp (sic)

respond to care we would refer him to another physician for a

second opinion.

In the notes I stated, "unknown" and that was a mistake entered

by my staff as they were performing my dictation. His injury in

my clinical opinion was work related.

See Exhibit 1, p. 2.

Mr. Backer last worked for Azuma on November 24, 2014. On December 3, 2014,

Mar Becerra, Human Resource Coordinator for Azuma, wrote Mr. Backer, advising him that

Azuma unsuccessfully attempted to contact him several times, instructing him to report to the

nearest Concentra Urgent Care for testing and treatment, and requesting a response by

Monday, December 8, 2014. See Exhibit13. In the letter, Ms. Becerra further advised Mr.

Backer that Azuma would consider his failure to respond as job abandonment. !d. On

December 8, 2014, Mr. Backer faxed a hand-written response to Azuma, stating, "I am not

abandoning my job, but you will be hearing from my workers compensation lawyer." See

Exhibit 7. On December 9, 2014, Azuma issued a Separation Notice and identified the

circumstances of separation as "Job abandonment. Employee has not reported to work,

responded to phone call, or returned phone calls since December 4, 2014." See Exhibit 8.

A dispute exists between the parties as to when Mr. Backer reported the alleged work

injury and home incident and what he reported as to each incident. Azuma's Carrier prepared

a First Report of Work Injury on December 3, 2014, stating:

[E]mployee claimed he had a neck strain from having a sneezing

fit at home. When employee found out he would not be paid for

time missed he claimed it was a work injury but gave no details

and will not answer calls from corporate or city manager. We

will be sending a certified letter.

See Exhibit 3. Upon receiving notice that Mr. Backer claimed a work injury, Azuma initially

instructed Mr. Backer to go to Concentra for a drug screen. Mr. Backer did not go to

Concentra or complete the drug screen. Azuma's Carrier later provided Mr. Backer a panel

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of physicians and he selected Carespot ofNashville on December 18,2014. See Exhibit 4.

Azuma's Carrier did not schedule or authorize an appointment for Mr. Backer with Carespot.

On January 6, 2015, an investigator for Azuma's Carrier obtained Mr. Backer's recorded

statement. See Exhibit 17. Thereafter, Azuma's Carrier filed a Notice ofDenial of Claim for

Compensation on January 12, 2014, based upon "subsequent intervening incident. No

medical evidence of injury. Right to Reserve." See Exhibit 6.

Mr. Backer filed a Petition for Benefit Determination on January 15, 2015. The

parties did not resolve the disputed issues through mediation and the Mediating Specialist

filed the Dispute Certification Notice on March 17, 20 15. On March 17, 20 15, the parties

separately filed Requests for Expedited Hearing. This Court conducted an in-person

evidentiary hearing on May 8, 20 15. Mr. Backer and his mother, Rebecca McGuire, testified

on behalf of Mr. Backer. Mary Becerra, Doug Tibbs, Bryan Cobb, and Scott Lewis testified

on behalf of Azuma and its workers' compensation carrier, Traveler's Insurance.

During the Expedited Hearing, Mr. Backer testified that, on November 18,2014, he

made a delivery in Cool Springs, unloaded his truck, and proceeded to pull a stackable

washer and dryer up a flight of stairs, using an electric dolly. Half way up the flight of stairs,

he felt a pop in his back and experienced pain the rest of the day and the remainder of the

week. Mr. Backer testified that the pain was located in his mid to upper back, between his

shoulder blades, and neck. Mr. Backer continued working the remainder of the day. The

next morning, Mr. Backer arrived at the warehouse and reported the incident to his

supervisor, Doug Tibbs. He told Mr. Tibbs that "I hurt my back yesterday" and Mr. Tibbs

replied, "Yeah, you know, this job will do that to you." Mr. Backer testified that the pain

became progressively worse. Mr. Backer denied any prior neck or back problems before

November 18, 2014.

Mr. Backer testified that, on the morning of November 25, 2014, he dressed for work

and sneezed a couple of times, when his "neck and whole body locked up." Mr. Backer

testified, "I could not move my neck. I could not turn my head. I could not do anything."

Mr. Backer rushed to work and told Mr. Tibbs about the sneezing incident, advised that he

was unable to work in his condition, and that he intended to seek medical treatment. That

same day, he sought treatment from Dr. Jim Sweeney, who diagnosed him with a twisted

vertebrae and disc damage in his neck. Thereafter, Mr. Backer treated with Dr. Sweeney and

reported his medical status to Mr. Tibbs following each visit.

Mr. Backer further testified that, on December 3, 2014, he advised Mr. Tibbs that he

wanted to file a workers' compensation claim. Mr. Tibbs contacted Mary Becerra, who

instructed Mr. Backer to go to the nearest "Concentra" to get a "drug and blood test and get

medical treatment." Mr. Backer did not go to Concentra as instructed, due to concerns with

Concentra's reputation or before he spoke with a lawyer concerning his rights.

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Mr. Backer testified that he received telephone calls from Bryan Cobbs of Azuma. He

later received a letter from Azuma, dated December 3, 2014, advising him that ifhe did not

contact Azuma by December 8, 2014, Azuma would consider his nonresponse as job

abandonment. In response, Mr. Backer faxed Azuma a letter to Azuma on December 8,

2014. See Exhibit 7. On December 9, 2014, Mr. Backer received a separation notice from

Azuma, which stated, "Job abandonment. Employee has not reported to work, responded to

phone call, or returned phone calls since December 4, 2014." See Exhibit 8.

Mr. Backer testified that he later received a C-42 form, Choice of Physicians, and

selected Carespot of Nashville. See Exhibit 4. Mr. Backer testified that Azuma did not

schedule an appointment for him. Mr. Backer described his neck pain: "It starts out in the

left side of my neck and it goes all the way down into my collarbone and the same on the

right side." Mr. Backer further described difficulty sleeping and increased pain with lifting

over ten (10) pounds.

On cross-examination, Mr. Backer admitted that Azuma assigned him a company

phone, but he did not use the company phone to report the November 18,2014 work injury,

while making the delivery in Cool Springs, Tennessee. Mr. Backer admitted that he did not

request medical treatment when he reported the November 18, 2014 work injury to Mr. Tibbs

the next morning. Mr. Backer denied that, on November 25, 2014, he developed neck pain

when he sneezed, but testified that the neck pain began when he reached for an allergy

medication in a cabinet at home. Mr. Backer also admitted that he did not seek medical

treatment until following the November 25, 2014 incident.

Mr. Backer admitted that, during the first week of December 2014, Mr. Tibbs advised

him that he needed to go to Concentra to submit to a drug screen. Mr. Backer admitted

further that he knew from company policies that Azuma required a drug screen after a work

injury, but he refused to go to Concentra for the post-injury drug test and never advised

Azuma of any objection to a drug test or treatment with Concentra.

Mr. Backer additionally admitted that he knew from company policies that Azuma

required employees to report absences timely and Azuma deemed an employee's failure to

report to work for three (3) days as job abandonment. Mr. Backer also knew from the letter

from Azuma dated December 3, 2014, that Azuma tried to reach him on several occasions.

Except for the faxed letter ofDecember 8, 2014, Mr. Backer admitted that he made no effort

to contact Azuma to discuss his work status, despite that Mr. Backer maintained possession

of the company phone. Mr. Backer failed to return the company phone after his termination.

Mr. Backer's mother, Rebecca McGuire, testified that she faxed a letter from Mr.

Backer to Azuma on December 8, 2014. Ms. McGuire testified further that she received a

telephone call on her cellphone from BJ Roscoe or Robbins, who identified himself as the

president of Azuma. Ms. McGuire testified, "He said that he was going to try to help Martin

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because he wasn't sure if Doug Tibbs reported the injury correctly and that he would let me

know. And then, that was it."

Mary Becerra, Azuma's Human Resource Director, testified that Azuma "always tries

to accommodate restrictions." Ms. Becerra testified that Azuma terminated Mr. Backer

because he did not respond to her letter dated December 3, 2014. Ms. Becerra did not

receive the fax from Mr. Backer, dated December 8, 2014, until December 9, 2014, because

Mr. Backer faxed the letter to the general fax number. Ms. Becerra testified that she

completed a Separation Notice, listing "Job Abandonment" as the reason for separation.

Prior to her December 3, 2014 letter, Ms. Becerra testified that she attempted on several

occasions to contact Mr. Backer on both his personal phone and on the company phone, as

did Doug Tibbs, City Manager for Nashville, and Bryan Cobb, Director of Operations. Ms.

Becerra further testified that Mr. Backer's November 18, 2014 schedule showed "he had a

delivery for a washer, not a stackable, to the Viera Cool Springs apartments, but it was

rescheduled."

On cross-examination, Ms. Becerra admitted that Mr. Backer completed deliveries on

November 18, 19, 20, 21, and 24, 2014. Following Mr. Backer's termination, Ms. Becerra

admitted that Azuma replaced Mr. Backer with another employee. When asked whether

Azuma accommodated any employee's restrictions in the Nashville area, Ms. Becerra

admitted that she could not recall any employee accommodated in the Nashville area. Ms.

Becerra also testified that Azuma assigned Mr. Backer an android tablet that listed his daily

delivery schedule, which Mr. Backer had not returned. On redirect, Ms. Becerra requested

that Mr. Backer return to Azuma the company phone and android tablet in accordance with

the company's equipment policy.

Doug Tibbs, Azuma's City Manager for the Nashville area, testified he supervised Mr.

Backer in November 2014. Mr. Tibbs testified that Mr. Backer first reported an injury on

November 25, 2014, when he appeared in his office. Mr. Tibbs testified, "he [Mr. Backer]

came in, he stated that he had hurt himself and did not believe that he was going to be able to

work." Mr. Tibbs further testified that "He [Mr. Backer] stated that, when he was at home,

he had 'a sneezing fit of about 10-12 sneezes,' he stated that he felt the pain in his neck area,

shoulder blade area, and right after that, he reached up into a cabinet or cupboard for some

allergy medication." Mr. Tibbs testified also that, approximately one week later, Mr. Backer

came to him and indicated, "he did have an injury, it was due to work." Mr. Tibbs testified

that Mr. Backer advised him that he planned to seek treatment from a chiropractor.

Subsequently, Mr. Backer provided Mr. Tibbs a note from the chiropractor stating Mr.

Backer was under the care of the chiropractor and provided reasons why he would be out of

work on certain dates. Other than the November 25, 2014 incident at home, Mr. Tibbs

denied that Mr. Backer reported any work injury involving a delivery. Mr. Tibbs testified

that he told N.fr. Backer to go to Concentra for a drug screen and advised him, "Azuma was

going to go ahead and open up a claim for him to try to help him out." Mr. Tibbs testified

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that he repeatedly called Mr. Backer to inquire as to how he was doing, but he never

responded.

On cross-examination, Mr. Tibbs did not recall any conversation with Mr. Backer,

wherein Mr. Backer reported a November 18, 2014 work injury to him on November 19,

2014, or that Mr. Backer reported that he hurt since November 18,2014. Mr. Tibbs admitted

that Azuma hired another employee to work in the Nashville area following Mr. Backer's

termination.

Bryan Cobb, Azuma's Director of Operations, testified that he hired Mr. Backer in

July 2014, while working in the capacity of Regional Manager for Azuma. Mr. Cobb

testified that, on December 3, 2014, he learned from Doug Tibbs that Mr. Backer claimed an

injury. Mr. Cobb testified that he called Mr. Backer twice on December 3, 2014, and a few

times in the following days, but received no response from Mr. Backer. Mr. Cobb testified

that Azuma assigned Mr. Backer an android tablet and cell phone, which he could have used

to communicate with Azuma to report an injury.

Scott Lewis, a claims adjuster for Travelers Insurance, testified that he electronically

filed the First Report of Work Injury concerning Mr. Backer's claim. He further testified that

he prepared the panel of physicians and sent the panel to Mr. Backer, who returned the form

after selecting Carespot. Mr. Lewis testified that he obtained a recorded statement from Mr.

Backer in the course of his investigation of his claim. Mr. Lewis testified that Travelers

Insurance denied the claim and filed a Notice of Denial of Claim for Compensation.

On cross-examination, Mr. Lewis admitted that Azuma did not authorized Mr. Backer

to seek care at Carespot, whom he selected from the panel, because Travelers Insurance

denied his claim for workers' compensation benefits due to a "subsequent, intervening

incident." Mr. Lewis testified:

[I]t was his sneezing fit that occurred on the morning of the 25th,

I believe it was, at his home. He worked full time without any

notice of claim. He was able to do his job fully from the time

that he claims he suffered an injury up until that morning. He

did not seek any treatment and the only thing, uh that, the reason

that he sought treatment was because of the sneezing fit. If not

for the sneezing fit and his back locking up, it didn't appear he

was going to seek treatment because he hadn't before.

Mr. Backer's Contentions

Mr. Backer, through counsel, contends that Mr. Backer legitimately sustained an

injury on the job. When Azuma failed to respond and ignored his explanation, Mr. Backer

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sought treatment from a chiropractor, Dr. Sweeney. Dr. Sweeney recorded a history from

Mr. Backer, examined him, assessed a diagnosis consistent with the injury, recommended

that Mr. Backer not work, and referred Mr. Backer to a specialist if his condition did not

improve. See Exhibit 1, p. 2. Azuma's Carrier denied the claim because of a subsequent,

intervening event. Mr. Backer cites Anderson v. Westfield Group, 259 S.W.3d 690 (Tenn.

2008) in support of his case. Azuma is responsible for the direct and natural consequences of

the November 18, 2014 work injury. Mr. Backer argues that the sneezing fit and reaching

into a cabinet were not subsequent, intervening events and are not acts of negligence. Mr.

Backer's neck and shoulders did not stop hurting from the November 18,2014 incident. Mr.

Backer told Mr. Tibbs of the November 18, 2014 injury. Mr. Backer went to the chiropractor

to seek relief. Azuma did not schedule an appointment for Mr. Backer with the physician

selected from the panel of physicians. Mr. Backer asks the Court to find that Azuma must

accept the Employee's choice of physician as selected by the panel, authorize and schedule

an appointment for the physician chosen, and award temporary total disability benefits from

November 25, 2014, based upon Dr. Sweeney's findings, until there is a further

determination of Mr. Backer's temporary disability status.

Azuma's Contentions

Azuma, through counsel, contends that Mr. Backer bears the burden of proving every

element of his case, and, under the McCall standard, he must demonstrate that he is likely to

succeed on the merits at trial. Azuma did not receive notice of a work injury on November

18,2014, despite Mr. Backer's possession of a company tablet and cell phone. Mr. Backer

continued working and did not seek treatment until following the sneezing fit on November

25, 2014.

Azuma challenges Mr. Backer's credibility based upon conflicting information

provided in his Azuma Leasing Employment Application, his responses to interrogatories,

and his recorded statement and concerning his education, his job history, a prior motor

vehicle accident, his prior criminal history, and the November 25, 2014 incident at home.

Mr. Backer admitted to many contradictions in the record. Mr. Backer testified he delivered

a stackable washer and dryer on November 18, 2014, in Cools Springs, but his schedule

showed he did not.

Azuma asserts that the Court may consider all evidence, including the recorded

statement, to determine Mr. Backer's credibility. Azuma avers that, in the recorded

statement, Mr. Backer stated he sneezed, felt pain, and his back locked up. Later, in the

recorded statement, Mr. Backer stated he reached into the cabinet, felt pain and his back

locked up. Mr. Backer first denied that he reported the sneezing event, and then later stated

that he told Mr. Tibbs of the sneezing event.

Azuma avers that it attempted on numerous occasions, through several individuals, to

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contact Mr. Backer, but he did not respond. The December 3, 2014 letter confirmed

Azuma's attempts to contact Mr. Backer and Mr. Backer failed to respond, with the

exception ofthe fax of December 8, 2014. Mr. Backer's only response was to send Azuma a

fax on December 8, 2014, advising that he was not abandoning his job.

Azuma further contends that Mr. Backer knew of Azuma's company policies

concerning drug screens following work injuries, but he refused to submit to the drug screen.

He testified that he was fearful of seeking treatment at Concentra, but he did not notify

Azuma of his objections or concerns. His actions reflected noncompliance, pursuant to

Tennessee Code Annotated section 50-6-204 (2014).

Azuma argues that its denial of the claim should stand because there is no proof that

Mr. Backer sustained an injury at work. Dr. Sweeney's April28, 2015letter fails to satisfy

the requirements of Tennessee Code Annotated section 50-6-102( 13) (20 14) and fails to

state his opinion within a reasonable degree of certainty. Moreover, Mr. Backer did not

report sneezing event to Dr. Sweeney such that his opinion on causation did not consider all

causes as required by the statute. Azuma cites Tindall v. Waring Park, 725 S.W.2d 935

(Tenn. 1987), and Trosper v. Armstrong, 273 S.W.3d 598 (Tenn. 2008), to support its

position.

Azuma further argues that Mr. Backer is not entitled to temporary total disability

benefits. Azuma had light duty work available. Mr. Backer abandoned his job and Azuma

terminated him for failure to contact it. But for Mr. Backer's job abandonment, Azuma

would have accommodated his restrictions if a treating physician placed light duty

restrictions on his activities.

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 (20 14 ). At an expedited hearing, an employee need not prove every element

of his or her claim by a preponderance of the evidence in order to be eligible for benefits.

McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk Comp App Bd

LEXIS 6, *7-8, 9 (Tenn. Workers' Comp. App. Bd. March 27, 2015); cf McCall v. Nat'!

Health Corp., 100 S.W.3d 209,214 (Tenn. 2003). Instead, an employee must come forward

with sufficient evidence from which the trial judge could conclude that the employee is likely

to prevail at a hearing on the merits. !d.

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Factual Findings

This Court finds that Mr. Backer sustained an injury to his neck and upper back on

November 18, 2014, while making a delivery for Azuma Leasing. Mr. Backer continued

working that day and returned to work on November 19, 20, 21, and 24, 2014. On the

morning of November 25, 2014, Mr. Backer dressed for work, sneezed several times and

reached for allergy medication from a cabinet at his home, when he experienced pain in his

neck and back, and his body locked up. Mr. Backer reported a work injury and the incident

at home to Azuma within thirty days of both incidents. Upon receiving notice of Mr.

Backer's desire to file a claim for workers' compensation benefits, Azuma instructed Mr.

Backer to go to Concentra Urgent Care for a post-accident drug screen and for medical

treatment. Mr. Backer refused to go to Concentra to complete the drug test and did not report

any objection with Concentra to Azuma. Azuma thereafter provided Mr. Backer a panel of

physicians, from which Mr. Backer selected Carespot, but Azuma did not authorize an

appointment for Mr. Backer at Carespot.

Application ofLaw 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 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;

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(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. Backer reported a specific incident, identifiable by time and

place, which occurred while he performed his job duties at Azuma. The issue then turns to

whether the November 18, 2014 incident resulted in an injury arising primarily out of and in

the course and scope of his employment at Azuma, and shown by a reasonable degree of

medical certainty. The only medical opinion contained in the record before this Court that

addressed causation is the report of Dr. Sweeney, an unauthorized treating physician. Dr.

Sweeney stated in his letter of April28, 2015, "I have diagnosed Mr. Backer with cervical

sprain/strain and mild discopathy due to the trauma he sustained with lifting an object at

work ... His injury in my clinical opinion was work related." See Exhibit 1, p. 2. Because

Dr. Sweeney is not an authorized treating physician, selected from a panel, Tennessee Code

Annotated section 50-6-102(13)(E)(2014) does not afford Dr. Sweeney a presumption of

correctness on the issue of causation. Moreover, Dr. Sweeney's opinion on causation in his

April 28, 2015 letter is not shown within a reasonable degree of medical certainty,

considering all causes, because his chiropractic treatment records do not contain any

reference to the November 25, 2014 incident that occurred at Mr. Backer's home, thereby

confirming Dr. Sweeney's knowledge of the November 25, 2014 incident at home.

In Anderson v. Westfield Grp., 259 S.W.3d 690, 696-97 (Tenn. 2008), cited by Mr.

Backer, the Tennessee Supreme Court discussed the general rule that a subsequent injury,

whether in the form of an aggravation of the original injury or a new and distinct injury, is

compensable if it is the "direct and natural result" of a compensable injury. !d. (quoting

Rogers v. Shaw, 813 S.W.2d 397, 399-400 (Tenn. 1991)). The "direct and natural

consequences" rule is limited, however, when the subsequent injury results from independent

intervening causes, such as the employee's own conduct. Generally, "[w]hen the primary

injury is shown to have arisen out of and in the course of employment, every natural

consequence that flows from the injury likewise arises out of the employment, unless it is the

result of an independent intervening cause attributable to claimant's own intentional

conduct." !d. (quoting 1 Larson's Workers' Compensation Law § 10 (2004) (emphasis

added). More specifically, "the progressive worsening or complication of a work-connected

injury remains compensable so long as the worsening is not shown to have been produced by

an intervening nonindustrial cause." !d. (emphasis added). An employee's intervening

conduct can break the chain of causation necessary to impose liability for a subsequent injury

based on the direct and natural consequences concept. !d.

In this case, the evidence established that a subsequent, intervening incident occurred

on November 25, 2014, when Mr. Backer sneezed several times, reached into a cabinet for

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allergy medication, and felt neck and back pain and his body locked up. Dr. Sweeney's

records failed to demonstrate whether he had knowledge ofthe November 25, 2014 incident

at home. As such, the medical evidence does not address whether the November 25, 2014

incident at home is a "direct and natural consequence" of the original work injury or an

"intervening, nonindustrial cause."

In McCordv. Advantage HumanResourcing, No. 2014-06-0063,2015 TN Wrk Comp

App Bd LEXIS 6 (Tenn. Workers' Comp. App. Bd. March 27, 2015), the Workers'

Compensation Appeals Board held:

Thus, mere 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. If an employer chooses to deny the

claim following its initial investigation, the employee must come

forward with sufficient evidence from which the trial court can

determine that the employee likely will prove a compensable

"injury by accident" at a hearing on the merits in accordance

with section 50-6-239(d)(l). Conversely, an employer who

elects to· deny a claim runs the risk that it will be held

responsible for medical benefits obtained from a medical

provider of the employee's choice and/or that it may be subject

to penalties for failure to provide a panel of physicians and/or

benefits in a timely manner.

Id. at* 13.

Azuma denied this claim on January 12, 20 15. Based upon the McCord decision, Mr.

Backer must come forward with sufficient evidence from which the Court may determine

that he will prove a compensable injury by accident at a hearing on the merits. The medical

evidence introduced by Mr. Backer failed to prove a compensable injury by accident because

it failed to address the November 25, 2014 incident at home and failed to address whether

such incident was a "direct and natural consequence" of the original work injury or an

"intervening, nonindustrial cause." Azuma attacked Mr. Brock's credibility on several

issues, including his education, prior criminal record, prior motor vehicle accident and prior

injuries, and his description of the incidents at issue in this case. This Court finds that Mr.

Brock's inconsistent statements on these various issues do not destroy Mr. Brock's credibility

with regard to his version of how the injury occurred. However, this Court finds that Mr.

Backer's testimony concerning the November 25, 2014 incident at home is insufficient to

establish that the incident was a "direct and natural consequence." Accordingly, based upon

the evidence available at this time, this Court concludes that Mr. Backer failed to establish

that he is likely to prevail at a hearing on the merits.

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IT IS, THEREFORE, ORDERED as follows:

1. Mr. Backer's claim against Azuma Leasing and its workers' compensation carrier for

the requested workers' compensation benefits is denied at this time.

2. This matter is set for Initial Hearing on August 19, 2015, at 8:00a.m. central time/

9:00 a.m. eastern time.

ENTERED this the 2nd day of July, 2015.

ELA B. JOHNSON

Court of Workers' Compensation Claims

Initial Hearing:

An Initial Hearing is scheduled for August 19, 20 15, at 8:00 a.m. central time/

9:00 a.m. eastern time, before Judge Pamela B. Johnson, for the Court of Workers'

Compensation Claims. You must call (865) 594-0091 or toll free (855) 543-5041 to

participate in the Initial Hearing.

Please Note: You must call in at the scheduled date and 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 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 ( 10) 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

15

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 oflndigency may be filed contemporaneously with the Notice of Appeal or

must be filed within ten (1 0) calendar days thereafter. The Appeals Board will

consider the Affidavit oflndigency 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

pav the filing fee or file the Affidavit of I ndigency 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 (10) 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 Judge

must approve the statement of the evidence before the Court Clerk may submit the

record to the Clerk of the Appeals Board.

6. 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.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sent

to the following recipients by the following methods of service on this the 2nd day of July,

2015.

Name Certified Via Via Service sent to:

Mail Fax Email

C. Kim Thompson, Esq. X kthom.Qson@tlgnllc.com

L. "Chip" Storey, Jr., Esq. X CSTOREYJ@travelers.com

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