The opinion
FILED
August 31, 2015
DiCOURT OF
WORKERS ' CO:\IPE:\"SATIO:\"
CLAD IS
Time: 1:02 PM
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
LUTHER BUCHANAN ) Docket No.: 2015-01-0012
Employee, )
v. ) State File No.: 22925 2015
CARLEX GLASS CO. )
Employer, ) Date of Injury: March 13, 2015
And )
TRAVELERS ) Judge: Audrey A. Headrick
Insurance Carrier. )
)
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
THIS CAUSE came to be heard before the undersigned Workers' Compensation
Judge on August 12, 2015, upon the Request for Expedited Hearing filed by Luther
Buchanan (Mr. Buchanan), the Employee, on July 21, 2015, pursuant to Tennessee Code
Annotated section 50-6-239 (2014) to determine ifthe Employer, Carlex Glass Company
(Carlex), is obligated to provide additional medical benefits. Considering the positions of
the parties, the applicable law, and all of the evidence submitted, the Court concludes Mr.
Buchanan is entitled to additional medical treatment.
ANALYSIS
Issue
The Dispute Certification Notice (DCN) issued in this claim indicated a number of
issues. The Court did not decide issues marked on the DCN unless presented for
determination at the Expedited Hearing. The parties presented the following issue for
determination at the Expedited Hearing:
Whether Mr. Buchanan has demonstrated by the evidence he would likely prevail
at a hearing on the merits on the issue of additional medical treatment.
1
Evidence Submitted
The Court admitted into evidence the exhibits below:
Exhibit 1: Affidavit of Luther S. Buchanan;
Exhibit 2: Medical records of Tennessee Orthopaedic Clinics (TOC);
Exhibit 3: Medical records ofBMH Occupational Health Center (BMH);
Exhibit 4: Affidavit of Carey Best;
Exhibit 5: Affidavit of George Dickens;
Exhibit 6: Affidavit of Michael Selesky;
Exhibit 7: Backlite Paint (8 HR.) Check Sheets (Check Sheet);
Exhibit 8: Photograph; 1
Exhibit 9: Photograph;
Exhibit 10: Video surveillance footage taken at Carlex;
Exhibit 11: Company Policy 8.1 of Carl ex; and,
Exhibit 12: Photograph.
The following documents were marked for identification purposes only:
1. Notice ofDenial of Claim for Compensation (Notice ofDenial); and
2. Recorded Statement of Luther Buchanan.
The Court designated the following as the technical record:
• Petition for Benefit Determination (PBD), May 26, 2015;
• DCN, July 15, 2015; and
• Request for Expedited Hearing, July 21, 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 or any attachments to them as allegations unless established by the
evidence.
The following witnesses provided in-person testimony:
• Mr. Luther Buchanan;
• Mr. George Dickens;
• Mr. Michael Selesky; and
• Mr. Carey Best.
1
The Court admitted three photographs of the area of the alleged injury. The first photograph shows the subject
machine from a distance. Exhibits 8 and 9 show a close-up of the subject machine, with depictions made by two
witnesses.
2
The parties stipulated Mr. Buchanan provided legally-sufficient notice of his
alleged injury to Carlex; the surveillance video shows Carey Best, a co-worker, changing
a screen; and, Carl ex provided a panel of physicians to Mr. Buchanan.
History of Claim
Mr. Buchanan is a fifty-five-year-old resident of Monroe County, Tennessee. (See
PBD.) Carlex, a manufacturer of glass windshields, employed Mr. Buchanan as a
Production Technician Level 3. On the morning of March 13, 2015, Mr. Buchanan was
working third shift in the paint room on the Backlite 1 machine. 2 There are four
machines in the paint room. (Ex. 5.) The surveillance cameras for the Backlite 1 and
Backlite 2 machines were mislabeled when they were installed. !d. The surveillance
camera labeled Backlite 1 actually records Backlite 2 and vice versa. !d.
Mr. Buchanan allegedly injured his right knee while changing a ripped paint
screen on Backlite 1 with his trainer, Sandy Harrison. In his affidavit, Mr. Buchanan
stated the injury occurred at "about 6:00a.m." (Ex. 1.) One of Mr. Buchanan's duties in
the paint room was to make sure the paint machine was running properly, and to change
the screen if it ripped. If the screen rips, Mr. Buchanan must physically remove the
ripped screen and replace it with a new screen. The entire process takes approximately
fifteen minutes. Mr. Buchanan bent down to use a taper gauge to align the new screen. 3
He testified he stood up to tum after setting the screen, and his right foot caught on the
back left side of the machine. On a photograph of Backlite 1 taken from video
surveillance, Mr. Buchanan drew circles at the locations of where he stepped at the back
of the machine and to the left side of the machine. (Ex. 9.) He also drew an "X" at the
approximate location where the twisting incident allegedly occurred, with the preface that
the photograph does not clearly show the location where his foot caught. Mr. Buchanan
testified he "did not holler" or "fall down" when he felt a pain or pull in his right knee.
Mr. Buchanan initialed a Check Sheet every fifteen minutes during his shift in the
paint room. (Ex. 7.) The Check Sheets for March 12, 2015, and March 13, 2015, show
the only time Mr. Buchanan changed a paint screen was at approximately 3:00 a.m. on
March 13, 2015. !d. The March 13, 2015 Check Sheet shows his co-worker, Carey Best,
changed a paint screen at approximately 6:00a.m. !d. Mr. Buchanan acknowledged the
video surveillance allegedly taken during the shift on March 13, 2015, shows him
changing a screen without any indication of his knee twisting, or of an injury occurring.
(Ex. 10.) On the video surveillance shown to the Court, there is no date or time-stamp
displayed on the footage. !d. The video surveillance also shows Carey Best, his co-
worker who worked on the Backlite 2 machine, changing a screen at 6:00 a.m. 4 !d.
2
Mr. Buchanan worked from 10:30 p.m. on March 12,2015, through 7:00a.m. on March 13,2015.
3
A taper gauge is a measuring device.
4
Mr. Best testified he had not seen the surveillance video. He also testified he did not recall changing a screen on
March 13, 2015.
3
While working on the catwalk, the employees working on Backlite 1 and Backlite 2
cannot see what the other is doing. During cross-examination, Mr. Buchanan testified the
incident must have happened at approximately 3 :00 a.m. based upon the Check Sheet for
March 13, 2015.
George Dickens submitted an affidavit and testified at trial. (Ex. 5.) He is the
Health & Safety Manager at Carlex. Mr. Dickens investigates any accidents that occur at
Carlex. He testified engineers installed the surveillance cameras, but he operates and is
responsible for the surveillance equipment. Mr. Dickens testified the video surveillance
equipment located at Carlex has file names showing the date and time-stamps. As
custodian of the surveillance equipment, he testified the video footage shown to the Court
was from March 13, 2015, at approximately 3:30 a.m. and at approximately 6:00 a.m. 5
Mr. Dickens testified he watched the video footage for the entire day of March 13, 20 15.
He testified there were no significant events shown on the video surveillance, and the
Check Sheet was consistent with the video.
Mr. Buchanan did not report an injury on Friday, March 13, 2015. He completed
the remainder of his shift. He stated the use of ice and heat on Friday and Saturday
lessened the pain in his knee. He worked Sunday night without any problems.
On Monday night, Mr. Buchanan stated his knee started hurting again. He then
reported his right-knee injury to Michael Selesky, his supervisor, on either March 17,
2015, or March 18, 2015, and filled out an incident report. Carlex's policy is for
employees to report any injury immediately. (Ex. 11.) Mr. Selesky testified Mr.
Buchanan reported an injury to him on March 18, 2015. He testified Mr. Buchanan told
him he hurt his knee around 6:00 a.m. on March 13, 2015, while working in the paint
room when his "foot caught in the frame of the painter." In Mr. Selesky's affidavit, he
stated Mr. Buchanan told him "he was changing the print screens when he hurt his knee."
(Ex. 6). On cross-examination, Mr. Selesky did not recall Mr. Buchanan telling him
anything about setting the screen. On a photograph ofBacklite 1, Mr. Selesky circled the
location where he understood Mr. Buchanan was injured. (Ex. 12.)
Mr. Buchanan selected Dr. Bryan Thompson at BMH from a panel of physicians.
(See PBD.) On March 25, 2015, Mr. Buchanan gave a history to Dr. Thompson that
"[o]n 3/13/2015, he was changing a screen in the paint room, and his foot stuck between
the table top on the catwalk and suddenly felt some pain in his right knee." (Ex. 3.) Dr.
Thompson diagnosed Mr. Buchanan with a possible meniscal tear but released Mr.
Buchanan to return to work without restrictions. Id. Dr. Thompson checked a box
labeled "Work Related." ld. On April 1, 2015, Dr. Thompson's diagnosis and medical
opinion remained the same. Id.
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As a result of Mr. Dickens' cross-examination, defense counsel acknowledged the footage initially shown to the
Court did not show Mr. Buchanan completing the entire screen change. However, the additional footage
subsequently shown to the Court did not show the occurrence of anything significant.
4
On April 15, 2015, Mr. Buchanan returned to Dr. Thompson complaining of right-
knee pain. !d. Dr. Thompson stated he "contacted the employer by phone and discussed
[the] visit." !d. He made a "[r]eferral to Maryville Orthopedic Clinic ... due to his [Mr.
Buchanan's] lack of improvement and need for further intervention." !d. Dr. Thompson
noted he discussed work restrictions with Carlex. !d. On the "Visit Summary for
Employer," Dr. Thompson again checked the box indicating Mr. Buchanan's condition
was work-related. !d.
On May 5, 2015, Mr. Buchanan saw a physician at TOC, but it is unclear from the
record which physician saw Mr. Buchanan. (Ex. 2). It is also unclear to the Court
whether Mr. Buchanan selected the TOC physician from a panel. However, the
"WorkLink Physician's Report" shows Travelers as the insurance company, provides a
claim number, and lists the name of the case manager. !d. The physician diagnosed Mr.
Buchanan with a right-knee sprain, checked the box indicating his condition is work-
related, and referred him to have a right-knee MRI for evaluation of a medial meniscus
tear. !d. On the same date, Travelers filed a Notice of Denial regarding Mr. Buchanan's
claim.
At the close of Mr. Buchanan's proof, Carlex moved for a "directed verdict." It
argued Mr. Buchanan failed to meet his burden of proving he would likely prevail at a
hearing on the merits. The Court took the matter under advisement and denied the
motion at the close of all of the proof.
Mr. Buchanan filed a PBD on May 26, 2015, seeking medical benefits. The
parties did not resolve the disputed issues through mediation, and the Mediation
Specialist filed the DCN on July 15, 2015.
Mr. Buchanan's Contentions
Mr. Buchanan contends he sustained a work-related right-knee injury at Carlex on
March 13, 2015, while changing a ripped paint screen on Backlite 1. He reported the
injury to his supervisor. Mr. Buchanan received a panel of physicians and treated with
Dr. Bryan Thompson at BMH. Mr. Buchanan contends he also received one authorized
visit with a physician at TOC. He argues that, because he neither fell down nor cried out
at the time of injury, does not mean he did not injure his knee. Mr. Buchanan
acknowledges he may have been incorrect about the time of his injury. He also
acknowledges he did not immediately report his injury to Carlex, but the law states he has
more than five days to report an injury. Mr. Buchanan seeks an order for medical
benefits.
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Carlex's Contentions
Carlex contends Mr. Buchanan is not entitled to workers' compensation benefits
because he failed to meet his burden of proof in establishing his injury arose primarily
out of and in the course and scope of his employment. Specifically, Carlex argues the
surveillance video shows no injury on March 13, 2015, and that Mr. Buchanan waited
five days to report his alleged injury. Therefore, Carlex argues it properly denied Mr.
Buchanan's claim.
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). An employee need not prove every
element of his or her claim by a preponderance of the evidence in order to obtain relief 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). At an expedited hearing, an employee has the burden to come forward
with sufficient evidence from which the trial court can determine the employee is likely
to prevail at a hearing on the merits. !d.
Factual Findings
The Court finds Mr. Buchanan sustained an injury to his right knee on March 13,
2015, when he was changing a ripped paint screen. He timely reported the injury. Carlex
provided a panel of physicians, from which Mr. Buchanan selected Dr. Bryan Thompson
at BMH as his authorized treating physician. Dr. Thompson referred Mr. Buchanan for
evaluation with an orthopedic physician, who ordered an MRI of the right knee. Both Dr.
Thompson and the physician at TOC checked a box indicating Mr. Buchanan's right-
knee condition is work-related.
Application ofLaw to Facts
For injuries on or after July 1, 2014, an employee must show his injury arose
primarily out of and in the course and scope of employment. Tenn. Code Ann. § 50-6-
102( 13) (20 14). "Arising primarily out of and in the course and scope of employment"
requires a showing, to a reasonable degree of medical certainty, that the injury causing
disablement or the need for medical treatment contributed more than 50% considering all
causes. Tenn. Code Ann. § 50-6-102(13)(C) (2014). However, the requirement that an
employee must show by a preponderance of the evidence that the employment
6
contributed more than 50% to the injury has yet to attach at this interlocutory stage of the
proceedings. The statutory directive of Tennessee Code Annotated section 50-6-
239(d)(1) (2014) requires this Court to determine whether Mr. Buchanan is likely to
prevail at a hearing on the merits. This interlocutory standard does not alleviate the need
for adequate proof of causation at a Compensation Hearing, or forestall either party from
presenting additional evidence at such hearing to reverse or modify this interlocutory
order. See McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015); cf
McCall v. Nat/. Health Corp., 100 S.W.3d 209, 214 (Tenn. 2003).
Carlex contends there is insufficient evidence Mr. Buchanan's right-knee injury
arose primarily out of or within the course and scope of his employment as required by
Tennessee Code Annotated section 50-6-102(13)(B) (2014). It argues Mr. Buchanan has
not met his burden of proving his employment with Carlex contributed more than 50% to
his injury. The crux of Carlex's argument is Mr. Buchanan never sustained an injury at
work on March 13, 2015. To support its contentions, Carlex attempted to discredit Mr.
Buchanan's testimony that he injured his right knee on March 13, 2015, when he was
changing a ripped paint screen. Carlex relied upon video surveillance footage allegedly
taken on March 13, 2015, and Mr. Buchanan's delay in reporting his injury five days
after it allegedly occurred.
Mr. Dickens, Health & Safety Manager at Carlex, played video surveillance for
the Court and testified he downloaded from the video equipment at work onto his laptop.
However, this Court gives little weight to the video surveillance footage. As previously
stated, the video footage and photos admitted into evidence do not include either the date
or the time. Mr. Dickens testified the surveillance equipment mislabels the footage as
"Backlite 2," when it should actually be "Backlite 1." He testified engineers installed the
surveillance equipment, and he maintains it. Mr. Dickens' testimony that the surveillance
equipment files at Carlex show the date and time of each video is not persuasive to the
Court, given the mislabeling, the lack of a date, and the lack of a time-stamp on the
footage submitted.
Instead, the Court finds the Check Sheet from March 13, 2015, in combination
with Mr. Buchanan's testimony and the medical records, support a finding he sustained a
right-knee injury at approximately 3:00 a.m. Mr. Buchanan's initial recollection that his
injury happened at 6:00a.m., as reported to Mr. Selesky, is a minor discrepancy and does
not discredit his testimony. Although the medical records admitted are sparse in nature,
the records reflect that both his authorized treating physician and an authorized
orthopedic physician are of the opinion Mr. Buchanan's right-knee condition is work-
related.
Pursuant to Tennessee Code Annotated section 50-6-102(13)(E) (2014), "[t]he
opinion of the treating physician, selected by the employee from the employer's
7
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." Carl ex did not rebut the medical opinions given by BMH and TOC, and Mr.
Buchanan selected either one or both medical providers from a panel. This Court finds
Carlex must provide ongoing medical treatment made reasonably necessary by the
accident as required by Tennessee Code Annotated section 50-6-204(a)(l)(A) (2014).
Since there is no evidence as to whether Mr. Buchanan selected TOC from a panel, the
Court finds Mr. Buchanan has the option to continue to treat with TOC or to request a
panel of orthopedic knee specialists.
This Court is constrained to evaluate all of the evidence, both lay and expert, at
this interlocutory stage of the proceedings to determine if Mr. Buchanan is likely to
succeed on the merits at a hearing. When applying the statutory directive of Tennessee
Code Annotated section 50-6-239(d)(1) (2014), Mr. Buchanan has come forward with
sufficient evidence from which this Court concludes he is likely to prevail at a hearing on
the merits.
IT IS, THEREFORE, ORDERED as follows:
1. Medical care for Mr. Buchanan's injuries shall be paid and Carlex or its workers'
compensation carrier shall provide Mr. Buchanan with medical treatment for his
injury as required by Tennessee Code Annotated section 50-6-204 (2014), to be
initiated by Carlex or its workers' compensation carrier providing Mr. Buchanan
with his choice of continuing treatment at TOC or with a panel of orthopedic knee
specialists as required by that statute. Medical bills shall be furnished to Carlex or
its workers' compensation carrier by Mr. Buchanan or his medical providers.
2. This matter is set for a Scheduling Hearing on October 16, 2015, at 8:30 a.m.,
EDT.
3. 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) (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.
4. For questions regarding compliance, please contact the Workers' Compensation
C~mpliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
253-1471 or (615) 532-1309.
8
ENTERED this the 31st day of August, 2015.
Initial (Scheduling) Hearing:
A Scheduling Hearing has been set with Judge Audrey A. Headrick, Court of
Workers' Compensation Claims. You must call 423-634-0164 or toll free at 855-
383-0001 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
9
Indigencv 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 appealing party shall file such position statement with the Court Clerk
within three 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 business days of the filing of the
appellant's position statement.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Medical Benefits was sent to the following recipients by the following methods
of service on this the 31st day of August, 20 15.
Name Certified Via Via Service sent to:
Mail Fax Email
Luther Buchanan X 613 Isbill Road # 1
Madisonville, TN 37354
Joseph Lynch X jlynch@wimberlylawson.com
Ashley Griffith X agriffith@2wimberl ylawson. com
P~h tm~~r~
Court of \Vorkers' Compensation Claims
WC.CourtCierk@tn.gov
10