The opinion
FILED
October 25 .~ 201~6
TN <COURT Of
1\ ORKE.R S' COMFiE.NS.t\TIO N
C L'\IMS
Tim-e 1:15PM
TENNESSE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
EDWARD RICHARDS, ) Docket No.: 2016-01-0212
Employee, )
v. ) State File No.: 11422-2015
)
KIEWIT POWER CONSTRUCTORS )
COMPANY, )
Employer, )
And ) Judge: AUDREY A. HEADRICK
)
)
ZURICH AMERICAN INSURANCE )
COMPANY, )
Insurance Carrier. )
)
EXPEDITED HEARING ORDER
GRANTING MEDICAL BENEFITS
This matter came before the Court on September 30, 2016, on a Request for
Expedited Hearing filed by Edward Richards pursuant to Tennessee Code Annotated
section 50-6-239 (20 15). The central legal issue is whether Mr. Richards is likely to
prevail at a hearing on the merits in proving that Kiewit is liable for medical treatment
necessitated by the recurrent hernia he developed while working for another employer. If
so, then the question turns to the extent of his entitlement to temporary disability benefits.
For the reasons set forth below, the Court holds Mr. Richards is likely to prevail at a
hearing on the merits in proving his entitlement to additional medical benefits. 1
However, the Court also holds Mr. Richards is not likely to prevail at a hearing on the
merits, at this time, in proving entitlement to additional temporary disability benefits.
1
A complete listing of the technical record and exhibits is attached to this Order as an appendix.
1
History of Claim
On February 15, 2015, Mr. Richards, an electrician, suffered a hernia when lifting
heavy wire. Kiewit accepted the claim as compensable.
Mr. Richards initially saw Dr. Donna Van Schuyver, who, after an abdominal
ultrasound, diagnosed two mid-line, sub-umbilical, abdominal wall hernias. (Ex. 3.)
Noting Mr. Richards' obesity, Dr. Van Schuyver opined, "I can't say that the hernias are
due to lifting [a] heavy object at work, however, I can't say that it isn't." (Ex. 4.) After
Dr. Van Schuyver's referral of Mr. Richards to a general surgeon, Mr. Richards selected
Dr. Claudine Siegert from a panel. (Ex. 3.)
Dr. Siegert diagnosed Mr. Richards with a ventral hernia and performed an open
repair with mesh on May 14. (Ex. 5.) The parties agreed that Kiewit laid Mr. Richards
off two days after his surgery and paid him temporary disability benefits from May 14,
2015, through June 24, 2015.
On June 10, 2015, Dr. Siegert noted Mr. Richards' surgical incision was "well-
healed without any evidence of infection or hernia." (Ex. 5.) However, she provided
conflicting instructions regarding Mr. Richards returning to work. Her first instruction
directed Mr. Richards to "stay out of work for a total of 6 weeks." ld. Dr. Siegert's
second instruction directed him to "resume normal activity without restrictions." ld. She
also encouraged Mr. Richards "to return to normal lifting slowly and gradually to reduce
the risk of recurrent hernia." !d. Dr. Siegert did not schedule a follow-up appointment
and stated Mr. Richards could "return as needed." ld.
Beginning in July 2015, Mr. Richards began working numerous, short-term
assignments as an electrician. He testified his work as an electrician routinely requires
him to lift up to fifty pounds. In January 2016, Mr. Richards started working as an
electrician for Emory Electric through a temporary staffing agency. In early February,
Mr. Richards testified that he carried a twenty-pound toolbox up two to three flights of
stairs and experienced burning and redness. He reported the incident to Emory but did
not file a workers' compensation claim.
On February 18, 2016, Mr. Richards returned to see Dr. Siegert and provided the
following history:
He states that he was doing well until about 2 weeks ago when he had to
carry his 20 up [sic] 4 flights of stairs since the elevator in the hotel was
broken. He had noticed later that night that the area round the previous
surgical repair was red, tender and swollen. . .. [A ]bout a week later, he
had increased burning sensation right at the dome of his previous incision.
When he went to palpate the area was in the umbilicus, he felt a 'squishing
2
sensation' and was able to reduce/push in some contents back into his
abdominal cavity. He has been able to do this multiple times since that
episode, and does continue to have some intermittent pain at that site.
!d. Her office note states, "[h]is body habitus and heavy lifting at work," as well as his
surgical repair failing in less than a year, put him at a higher risk of recurrence. !d. Dr.
Siegert also noted that, "it appears that the mesh from the previous placement has pulled
away from the inferior aspect of the repair and [he] has had a 'recurrence' at the inferior
aspect of his previous hernia." !d. Dr. Siegert diagnosed Mr. Richards with an incisional
hernia, released him to return to work, and recommended surgical repair of the hernia.
!d. She further stated that Mr. Richards would remain off work for six to eight weeks
following the surgery.
Kiewit sent correspondence to Dr. Siegert asking her to respond to various
questions regarding Mr. Richards' prior hernias as well as his new hernia. 2 (Ex. 6.) Dr.
Siegert opined the lifting incident at Kiewit in February 2015 "appears to be the cause of
the [ventral] hernias." !d. When asked if the February 18, 2016 lifting incident was "the
primary cause of the 'new' incisional hernia," Dr. Siegert opined as follows:
Yes. . .. he has a 10% risk of recurrent hernia after repair. Any lifting,
straining, pushing or pulling can be associated with a recurrence. The
timing of the 'incident' and the observation of a 'new bulge' seem to
correlate [with] each other. The 'new' problem is actually a recurring of
the original hernia[.]
!d. Mr. Richards later sent a letter to Dr. Siegert requesting clarification of her prior
responses to Kiewit. Dr. Siegert opined that, "[t]he recurrent hernia is a direct result of
having a previous hernia." (Ex. 7 .) She also clarified that Mr. Richard was to be off
work for six weeks after his May 14, 2015 surgery. !d.
The parties did not present any testimony regarding Mr. Richards' work history
following the February 18, 2016 incident. However, the parties agreed that Mass Electric
hired Mr. Richards on September 7, 2016, and a business relationship of some nature
exists between Mass Electric and Kiewit. Mr. Richards testified he remains employed by
Mass Electric, though he has not actually worked due to his hernia.
Mr. Richards seeks medical benefits for the recurrent hernia and temporary
disability benefits from September 8, 2016, forward. Mr. Richards argued Kiewit did not
2
The Court initially admitted this correspondence for identification purposes only since Dr. Siegert did not sign it.
However, the Court permitted defense counsel to verify with Dr. Siegert that the Medical Certification provided
with her medical records also included the letter. The Court admits into evidence Dr. Siegert's written confirmation
and the letter as Exhibit 6.
3
overcome the presumption of correctness of Dr. Siegert's opm10n that his recurrent
hernia is a direct result of his original hernia.
Kiewit argued that the cause of Mr. Richards' recurrent hernia is due to a
subsequent, intervening injury that occurred while working for a new employer.
Specifically, it argues Dr. Siegert's records show that Mr. Richards carrying a twenty-
pound toolbox up several flights of stairs caused his recurrent hernia. Kiewit further
argued Mr. Richards did not establish medical causation because Dr. Siegert did not use
the "arising primarily" standard. Regarding the issue of temporary disability benefits,
Kiewit argues it is entitled to a two-week overpayment it made to Mr. Richards after Dr.
Siegert released him on June 10, 2015.
Mr. Richards filed a Petition for Benefit Determination on March 29, 2016. The
parties did not resolve the disputed issues through mediation, and the mediator filed a
Dispute Certification Notice on May 9, 2016. Mr. Richards filed a request for a hearing,
and this Court heard the matter on September 30, 2016. 3
Findings of Fact and Conclusions of Law
Mr. Richards bears the burden of proof on all essential elements of his workers'
compensation claim. Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015).
However, he is not required to prove every element of his 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). 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.
As the panel physician, Dr. Siegert's opmton regarding causation "shall be
presumed correct but this presumption shall be rebuttable by a preponderance of the
evidence." Tenn. Code Ann.§ 50-6-102(14)(E) (2015). After receiving correspondence
from the parties regarding causation, Dr. Siegert opined that "[t]he 'new' problem is
actually a recurring of the original hernia," and she later clarified that "[t]he recurrent
hernia is a direct result of having a previous hernia." (Ex. 6 and 7.) Stated another way,
Dr. Siegert is opining that Mr. Richards' recurrent hernia is the direct and natural
consequence ofhis February 15, 2015 hernia.
Our Tennessee Workers' Compensation Appeals Board recently addressed the
direct and natural consequence rule in Lee v. Western Plastics, et al., No. 2016-06-0912,
3
Following a show cause hearing, Mr. Richards filed an Affidavit requesting a determination of benefits.
4
2016 TN Wrk. Comp. App. Bd. LEXIS _(Tenn. Workers' Comp. App. Bd. Oct. 20,
2016):
In Tennessee, the general rule is 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."
Anderson v. Westfield Grp., 259 S.W.3d 680, 696 (Tenn. 2008). (Footnote
omitted). "The rule, commonly referred to the as the direct and natural
consequences rule, has been stated as: [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." !d. Therefore, "all the medical consequences and sequelae
that flow from the primary injury are compensable." Rogers v. Shaw, 813
S.W.2d 397, 400 (Tenn. 1991). "The rationale for the rule is that the
original compensable injury is deemed the cause of the damage flowing
from the subsequent injury-producing event." Anderson, 259 S.W.3d at
697.
Id. at slip op. 4.
The limitation on the direct and natural consequence rule is "whether the
subsequent injury is the result of independent intervening causes, such as the employee's
own conduct." Anderson, 259 S.W.3d at 697. Also, "in order for an employee's actions
to constitute an independent intervening incident sufficient to break the chain of
causation, there must be negligent, reckless, or intentional conduct on the part of the
employee." Lee, at slip op. 5. Here, there is no evidence to suggest that Mr. Richards
acted negligently, recklessly, or intentionally in causing the recurrent hernia. Instead, the
medical proof indicates that Mr. Richards' recurrent hernia is a natural consequence of
his original work-related hernia. Therefore, the Court holds that Mr. Richards would
likely prevail at a hearing on the merits regarding his entitlement to the requested medical
treatment.
However, the Court is unable to grant Mr. Richards request for temporary
disability benefits. Mr. Richards argued he has not worked since September 6, 2016, due
to his recurrent hernia. However, at the last office visit on February 18, 2016, Dr. Siegert
documented that she released Mr. Richards to return to work without restrictions. While
it is certainly possible that Mr. Richards' work status may have changed after February
18, 2016, no medical records in evidence document the extent of Mr. Richards' disability
or its duration. See generally Jones v. Crencor Leasing and Sales, No. 2015-06-0332,
2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7-8 (Tenn. Workers' Comp. App. Bd.
Dec. 11, 20 15). Therefore, at this time, the Court holds Mr. Richards is not likely to
establish at a hearing on the merits that he is entitled to temporary disability benefits.
5
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Richards' request for medical benefits is granted. Kiewit or its workers'
compensation carrier shall authorize him to see Dr. Claudine Siegert for treatment
of his recurrent hernia. Mr. Richards or the providers shall furnish Kiewit, or its
carrier, bills for the charges incurred for compensable care, and Kiewit or its
carrier shall timely pay the charges.
2. Mr. Richards' request for temporary disability benefits is denied at this time.
3. This matter is set for a Status Hearing on January 10, 2017, at 2:00p.m., Eastern
Time.
4. 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 WCCompliance.Prog..am(a).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.
5. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email WCCompliance. Prograrn@tn. gov or by calling (615)
253-1471 or (615) 532-1309.
ENTERED this the 25th day of October, 2016.
Judge Audr~drick
Court of Workers' Compensation Claims
Status Hearing:
A Status Hearing has been set on January 10, 2017, at 2:00 p.m. Eastern Time,
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.
6
Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven 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 oav the fiJing 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.
7
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.
8
APPENDIX
Exhibits:
1. Affidavit of Edward Richards
2. Wage Statement
3. Medical records of American Family Care (Dr. Donna Van Schuyver)
4. Causation response ofDr. Van Schuyver dated March 27, 2015
5. Medical records ofBlue Mountain Surgery (Dr. Claudine Siegert)
6. Causation response of Dr. Siegert to correspondence from Sedgwick CMS
dated March 31, 20 15
7. Causation response of Dr. Siegert to correspondence from Mr. Richards dated
September 8, 20 16
Technical record: 4
1. Petition for Benefit Determination, filed March 29, 2016
2. Responding Party's Position Statement in Opposition to the Requesting Party's
Request for Benefits, filed April 18, 2016
3. Dispute Certification Notice with additional disputed issues and defenses
attached, filed May 9, 2016
4. Show Cause Order, filed August 1, 2016
5. Amended Show Cause Order, filed August 1, 2016
6. Order on Show Cause Hearing, filed August 22, 2016
7. Affidavit ofMr. Richards requesting a hearing, filed August 23, 2016
8. Notice of Expedited Hearing, filed August 25, 2016
9. Motion filed by Mr. Richards requesting leave to participate in Expedited
Hearing by telephone, filed September 15, 2016
10. Order granting Mr. Richards' Motion for leave to participate by telephone in
Expedited Hearing, filed September 27, 2016
4
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.
9
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 25th day of October, 2016.
Name Certified Via Fax Via Email Address
Mail Fax Number Email
Edward Richards, X X 26 Mountain Brook Drive
Self-Represented Candler, NC 28715
moj oj oot(a),att.net
Mary Dee Allen, X mallen@wimberlylawson.com
Esq.
HRUM, COURT CLERK
.courtclerk n.tn. ov
10