The opinion
FILED
Aug 13, 2018
10:35 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
Anthony Frizzell, ) Docket No. 2018-06-0636
Employee, )
v. )
Tin Roof Acquisition Co., LLC, ) State File No. 87883-2018
Employer, )
And )
ZNAT Insurance, ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER
This case came before the Court on August 9, 2018, on Anthony Frizzell's
Request for Expedited Hearing. The present issues are whether Mr. Frizzell's current
need for surgery relates to the original work-related injury and whether he is entitled to
temporary partial disability benefits. The Court holds that his present need for surgery is
a direct and natural consequence of the original work-related injury and he is entitled to
surgery. However, on the present record Mr. Frizzell did not satisfy his burden to show
entitlement to temporary disability benefits.
History of Claim
Mr. Frizzell worked as security manager for Tin Roof, a bar in downtown
Nashville. On October 28, 2017, he injured his head, shoulders and neck at work during
an altercation with several customers. Tin Roof did not offer any evidence or argument
contesting the work-relatedness of the October 28 incident and Mr. Frizzell's resulting
mJunes.
Regarding his entitlement to temporary partial disability benefits, Mr. Frizzell
received authorized care from Dr. Steven Strickland, a neurologist, for his head injury.
According to Mr. Frizzell's affidavit, Dr. Strickland "recommended that I should only be
allowed to work jobs that were light duty and not be exposed to hazardous situations."
However, Mr. Frizzell did not introduce medical records documenting the treatment,
1
restrictions, or their duration. Mr. Frizzell testified that Dr. Strickland placed restrictions
but he could not recall any specifics. In December, Tin Roof offered light-duty work
checking IDs at the door, but Mr. Frizzell declined.
Later, Tin Roof offered a panel of orthopedists, and Mr. Frizzell chose Dr. Blake
Garside for his shoulder injury. Dr. Garside performed surgery in early June 2018
described as a "right shoulder arthroscopy with debridement, SAD, and biceps
tenodesis." During his recovery, Mr. Frizzell slipped in the shower on July 7 while
reaching for a towel with his left hand. As he fell, he instinctively extended his right arm
to balance himself and felt a sudden "pop."
Neither party introduced treatment records. Rather, the parties agreed to introduce
only one set of notes from a post-op visit on July 11 and Dr. Garside's response to a letter
from Tin Roofs counsel asking a limited causation question.
The notes from the follow-up visit stated that Mr. Frizzell reported slipping in the
shower and he "grabbed instinctively" with his right arm to catch his fall, re-injuring the
arm. Dr. Garside wrote that his exam findings that day were "consistent with [the]
rupture/failure of his right biceps tenodesis. This likely occurred secondary to his fall in
the shower on Saturday, July 7." The doctor recommended surgery to repair the injury.
The next day, Tin Roof sent Dr. Garside a letter asking about causation for Mr.
Frizzell's right biceps rupture and its relationship to the work-related injury of October
28, 2017. The specific question appears in the letter as follows:
In your expert medical opinion, due to the "increased pain complaints" and
"obvious popeye deformity" noted by you on July 11, 2018, following a
reported "slip in the shower" and acute pain complaints, and any and all
other information you feel to be germane, did the work incident from
October 28, 2017, contribute more than fifty percent (50%) in causing the
right biceps rupture reported to you on July 11, 2018?
Below the question were blanks for the doctor to choose "yes" or "no." Dr. Garside
selected neither and instead wrote "The current deformity & failure of the tenodesis is 'l
to his slip/fall on 7/9/18."
2
Findings of Fact and Conclusions of Law
Mr. Frizzell need not prove every element of his claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, he must present sufficient ~
evidence that he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-
6-239(d)(l) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Medical Benefits
At the hearing Tin Roof did not dispute that Mr. Frizzell's injuries arose primarily
out of and in the course and scope of employment. See Tenn. Code Ann.§ 50-6-102(14).
Likewise, it did not dispute that the October 28 work injury caused the need for the
original shoulder surgery. Tin Roof only questioned whether there-injury and need for
additional surgery related to the October 28 incident. In other words, is the
rupture/failure of his right biceps tenodesis a direct and natural consequence from the
initial injury, or did an independent, intervening cause lead to the need for surgery?
The Workers' Compensation Appeals Board adopted longstanding Tennessee law
in Lee v. W Plastics, 2016 TN Wrk. Comp. App. Bd. LEXIS 53 (Oct. 20, 2016), when it
held that "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." !d. at *6 (citation omitted). The
rule provides that when 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. at *6-7. However, the rule has limits. Tennessee
courts have consistently applied the principle that, 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. !d.
at * 10 (emphasis added).
Here, Tin Roof argued that "the recommended surgery and current right shoulder
condition is not primarily related to the incident at issue." It relied on Dr. Garside's
characterization that the need for surgery was "secondary to the slip and fall" in July
2018.
The Court disagrees. Considering Dr. Garside's statement in the context of both
the July 11 treatment notes and the causation letter, he clearly believes the re-injury and
need for surgery was the result of Mr. Frizzell's slip in the shower. However, this Court
is unwilling to characterize a slip in the shower-a purely accidental occurrence while
engaging in customary personal hygiene-as negligent, reckless or intentional conduct on
Mr. Frizzell's behalf constituting an independent, intervening cause under the Workers'
Compensation Law. Therefore, his resulting need for surgery to repair the re-injured
3
shoulder was a direct and natural consequence of the original, primary injury-producing
event: the injuries Mr. Frizzell suffered breaking up a fight at work. The Court holds that
Tin Roof must authorize the surgery and follow-up care.
Temporary Disability Benefits
Turning now to Mr. Frizzell's request for temporary partial disability benefits, an
injured worker may be entitled to temporary partial disability benefits when the
temporary disability resulting from a work-related injury is not total. See Tenn. Code
Ann. § 50-6-207(1)-(2). Temporary restrictions assigned by physicians during an injured
worker's medical treatment do not establish an entitlement to continued temporary
disability benefits if the employee is able to work without loss of income. Frye v.
Vincent Printing Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 34, at* 16 (Aug. 2, 2016).
Here, Tin Roof argued that Mr. Frizzell did not satisfY his burden regarding the
existence of temporary restrictions assigned by Dr. Strickland. The Court agrees. The
only proof of restrictions following the work incident is Mr. Frizzell's affidavit offering
his lay recollection of alleged restrictions. Further, Mr. Frizzell was unable to elaborate
on the restrictions in his testimony and he offered no proof as to the timeframe of these
restrictions. As noted above, Mr. Frizzell must present sufficient evidence that he is
likely to prevail at a hearing on the merits. On this record, the Court is unable to find the
terms, extent or even the existence of Dr. Strickland's work restrictions and holds Mr.
Frizzell is unlikely to prevail at a hearing on the merits regarding his entitlement to
temporary partial disability benefits. Because this is an interlocutory order, Mr. Frizzell
may gather additional evidence and renew his claim for temporary disability benefits at
either another expedited hearing or the final compensation hearing. 1
IT IS, THEREFORE, ORDERED as follows:
1. Tin Roof or its workers' compensation carrier must authorize the recommended
surgery.
2. Mr. Frizzell's request for temporary partial disability benefits 1s denied at this
time.
3. This matter is set for a Scheduling Hearing on October 8, 2018, at 9:00 a.m.
Central. The parties must call 615-532-9552 or toll-free at 866-943-0025 to
participate in the Hearing. Failure to call may result in a determination of the
issues without the parties' participation.
1
The parties offered extensive testimony and argument about the nature of Mr. Frizzell's work duties
before the work incident, a proposed light-duty accommodation, and whether he acted reasonably in
declining to return to work in the light-duty position. Given the ruling regarding the lack of proof of
restrictions, the Court need not address these arguments at this time.
4
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).
The Insurer or Self-Insured Employer must submit confirmation of compliance
with this Order to the Bureau by email to WCCompliance.Program@tn.go 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. For questions regarding compliance, please
contact the Workers' Compensation Compliance Unit vta email at
WCCompliance.Program@tn.gov.
ENTERED August 13,2018.
Court of Workers' Compens
APPENDIX
Exhibits:
1. Mr. Frizzell's Affidavit
2. Wage statement
3. Choice of Physician form
4. Affidavit of Kristin Washington
5. Affidavit of Ryan Janse Van Rensburge
6. Medical records: Dr. Garside
Technical Record:
1. Petition for Benefit Determination, March 22, 2018
2. Petition for Benefit Det,ermination, AprilS, 2018
3. Employee's Pre-Mediation Position Statement
4. Dispute Certification Notice
5. Request for Expedited Hearing
6. Employer's Witness and Exhibit List
7. Employer's Response to Request for Expedited Hearing
5
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent to these recipients by
the following methods of service on August 13, 2018.
Name Certified First Email Service sent to:
Mail Class
Cole Rogers, X crogers@rogerslawtn.com
Employee's attorney
Connor Sestak, X csestak@morganakins.com ;
Employer's attorney olunnv@.morganakins.com
Penny S urn, Clerk of Court
WC.Co rtClerk@tn.gov
6
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Filed Date Stamp Here EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers' Compensation
Docket#: - - - -- -- - --
www.tn.go v/labor-wfd/wcomp.shtm l
State File #/YR: - - -- - - --
wc.courtclerk@tn.gov
1-800-332-2667 RFA#: _ _ _ _ _ _ _ _____ _
Date of Injury: - - - -- - - - -
SSN: _______ _ ______ __
Employee
Employer and Carrier
Notice
Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers' Compensation Claims at _ __
-~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
[List the date(s) the order(s) was filed in the court clerk's office]
Judge___________________________________________
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
D Temporary disability benefits
D Medical benefits for current injury
D Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
Address:. _______________________ ______________ ___________
Party's Phone:.____________________________ Email: _________________________
Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -
Attorney's Address:. _ _ _ _ _~~-~~~~----~~---- Phone:
Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __
*Attach an additional sheet for each additional Appellant*
LB-1099 rev.4/15 Page 1 of 2 RDA 11082
Employee Name: - - - -- - - -- - - - SF#: _ _ _ _ __ _ _ _ _ DO l: _ __ _ __
Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee
Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __
Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:
Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the day of__, 20_ .
[Signature of appellant or attorney for appellant]
LB-1099 rev.4/1S Page 2 of 2 RDA 11082
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082