The opinion
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT GRAY
AARON DELANEY, ) Docket Number: 2016-02-0152
Employee, )
v. )
TPI CORPORATION, ) State File Number: 94775-2015
Employer, )
and )
UNITED HEARTLAND, ) Judge Brian K. Addington
Insurance Carrier. )
)
EXPEDITED HEARING ORDER
The Court conducted a second Expedited Hearing in this matter on May 7, 20 19.
Previously, the Court issued a decision on the record based on the medical records and
agreed facts. The Court denied benefits on the basis that Mr. Delaney had not presented
sufficient evidence that he was likely to succeed at trial.
Mr. Delaney's current request concerns additional medical and temporary
disability benefits. The main issue is whether Mr. Delaney suffered an injury at work,
and if so, to which benefits he is entitled. Because he established he is likely to succeed
at trial in proving he suffered an injury that arose primarily out of and in the course and
scope of his employment, the Court grants the requested relief.
History of Claim
Mr. Delaney worked for TPI as a CNC operator. 1 On November 24, 2015, his job
required him to adjust the backstops on a machine. He maneuvered under a safety bar,
placing him in a confined space. He then reached approximately thirty inches to align
one of the machine arms. As he did, he heard his right arm pop. He also noticed one of
the air hoses hooked to the machine became loose. He quickly jerked his right arm to
1
Per the Dispute Certification Notice, Mr. Delaney's compensation rate is $370.50
1
shield his face from the flapping hose, and he felt immediate arm pain.
Mr. Delaney reported the injury and saw the company nurse. He did not mention
the loose air hose when he signed two accident reports. TPI provided treatment with
MedWorks the next day. The history section of the MedWorks notes stated that Mr.
Delaney described the incident as reaching for the machine, but the Patient Description of
the Accident and Patient Visit Summary and Instructions forms noted that Mr. Delaney
"jerked r[ight] arm away from machine." MedWorks referred him to orthopedist Dr.
Joseph Grant.
Dr. Grant saw Mr. Delaney on January 20, 2016. He told Dr. Grant that he
reached toward the machine, heard a pop, and felt extreme pain. After reviewing an
MRI, Dr. Grant diagnosed a full-thickness rotator cuff tear and recommended surgery.
Dr. Grant related his need for surgery to the work-incident. However, on April 5, 2016,
TPI denied the claim, asserting Mr. Delaney suffered an idiopathic injury and "no
primary work causation."
Because of the denial, Mr. Delaney sought treatment at the Veterans
Administration with Dr. Bert Tagert in June. There, he described his injury as occurring
when he jerked his arm while adjusting backstops. Dr. Tagert performed the surgery on
April 24, 2017, taking him off work afterward until September 11. He related Mr.
Delaney's need for treatment to the work incident.
Mr. Delaney argued he suffered a compensable injury when he reached for the
back of the machine and jerked his arm to shield his face. He argued that TPI should not
have denied his claim, which forced him to seek treatment on his own. He requested past
and on-going medical benefits and temporary disability benefits.
TPI argued Mr. Delaney suffered an idiopathic injury when he simply reached out
toward his machine, and no condition of his employment presented a peculiar or
additional hazard. TPI also asserted Mr. Delaney changed his story to include the loose
air hose following the first Expedited Hearing to obtain benefits, and that he should be
bound by prior agreed facts where the flapping hose was not mentioned. TPI requested
that the Court deny Mr. Delaney's claim.
Findings of Fact and Conclusions of Law
Mr. Delaney has the burden of proof on all essential elements of his claim. Scott
v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
20 15). However, he need not prove every element of his claim by a preponderance of the
evidence to obtain relief at an Expedited Hearing. Instead, he must come forward with
sufficient evidence from which the trial court can determine that he is likely to prevail at
a hearing on the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk.
2
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
An employee has the burden to prove he suffered an injury that arose primarily out
of and in the course and scope of employment that causes disablement or the need for
medical treatment. Tenn. Code Ann. § 50-6-102(14) (2018). This burden is met if he
shows that the employment contributed more than fifty percent in causing the injury.
Tenn. Code Ann. § 50-6-102(14)(B). Except in the most obvious cases, an employee
must prove causation with atl expert medical opinion. Orman v. Williams Sonoma, Inc.,
803 S.W.2d 672, 676 (Tenn. 1991). Since Mr. Delaney did not suffer an obvious injury,
he must supply a physician's causation opinion. He did so.
TPI does not dispute that Dr. Grant, the authorized physician, and Dr. Tagert, the
unauthorized physician, both determined that Mr. Delaney suffered an injury at work that
caused the need for treatment. Rather, it asserts that the Court must decide whether a
work related injury occurred as defined under the Workers' Compensation Law.
Previously, this Court issued a decision on the record based on medical records
and agreed facts. It determined that Mr. Delaney was not likely to succeed at a hearing
on the merits based on the evidence before the Court at that time. The agreed facts
specifically stated that they are only for the purposes of the decision on the record. The
Court finds they do not bind Mr. Delaney for this or later hearings.
During the in-person Expedited Hearing, Mr. Delaney provided credible testimony
explaining the tight quarters in which he worked, the length he reached to adjust the
machine, and jerking his arm to shield his face. Although Mr. Delaney did not mention
the jerking motion in his injury reports to TPI, he provided a reasonable excuse, in that
TPI only asked him which job duty he was performing at the time of the injury. The
medical records show that Mr. Delaney told the providers at MedWorks and Dr. Tagert
that he jerked his arm.
Considering all the evidence, the Court holds Mr. Delaney's work caused a hazard
that led to his injury, and he is likely to succeed in proving he suffered a work injury that
caused disablement and the need for medical treatment.
Although Dr. Grant indicated Mr. Delaney needed surgery, TPI denied the claim,
which forced him to seek treatment on his own. An employer risks being required to pay
for unauthorized treatment if it does not provide treatment made reasonably necessary by
the work injury as required by Tennessee Code Annotated section 50-6-204(a)(l)(A).
See Young v. Young Elec. Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16 (May
25 , 2016). The Court finds Dr. Tagert's treatment necessary and reasonable, as both
doctors recommended the surgery. However, Mr. Delaney did not pay for his treatment
and surgery with Dr. Tagert. The Court reserves the issue of payment of past medical
benefits. Dr. Tagert also recommended an FCE; TPI shall schedule one.
3
Regarding temporary disability benefits, Dr. Tagert took Mr. Delaney off work
from April 24 until September 11, 2017, because of his work-related surgery. An
employee is entitled to temporary total disability benefits when his work injury totally
disables him from work. Tenn. Code Ann. § 50-6-207(1)(A). The Court finds Mr.
Delaney totally disabled from work between those dates and holds he is entitled to
temporary total disability benefits in the amount of $7,462.93.
IT IS, THEREFORE, ORDERED as follows:
1. The Court reserves the issue of payment of past medical expenses. Mr. Delaney is
entitled to ongoing medical benefits under Tennessee Code Annotated section 50-
6-204. TPI shall schedule an FCE. Because Dr. Tagert is a VA employee, Dr.
Grant shall be the authorized physician for future treatment. If he is unwilling to
treat Mr. Delaney, TPI shall provide a new panel of orthopedists.
2. TPI shall pay Mr. Delaney $7,462.93 in past temporary total disability benefits.
3. This matter is set for a Scheduling Hearing on July 2, 2019, at 2:00p.m. Eastern
Time. You must call 855-543-5044 to participate in the Hearing. Failure to call
might result in a determination of the issues without your participation.
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.Pr gram(G),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. For questions regarding compliance, please
contact the Workers' Compensation Compliance Unit via email at
WCC mp.liance.Program@tn.gov .
ENTERED May 14, 2019.
Is/Brian K. Addington
Judge Brian K. Addington
Court of Workers' Compensation Claims
4
Appendix
Exhibits:
1. Aaron Delaney's affidavit
2. Wage Statement
3. Photos (collective)
4. Mr. Delaney's Exhibits (collective)
A. Occupational Medicine medical records
B. Watauga Orthopaedic medical records
C. VA Medical Center medical records
D. Causation opinion-Dr. Bert Tagert
E. Form C-32 of Dr. Tagert
F. Deposition ofDr. Tagert
G. VA Notice ofLien2
H. Wage Statement
I. Photos
5. TPI's Exhibits (collective)
A. Report of injury
B. Accident investigation report
C. Occupational Medicine medical records
D. Watauga Orthopedics medical records
E. VA Medical Center medical records
F. Statement of Agreed Facts
G. Deposition of Aaron Delaney
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer's Motion for Summary Judgment
5. Employer's Memorandum in Support of Motion for Summary Judgment
6. Employer's Uncontroverted Statement of Facts
7. Response to Motion for Summary Judgment and Uncontroverted Statement of Facts
8. Order Denying Motion for Summary Judgment
9. Employer's Motion to Continue
10. Employer's Motion for Extension to File Brief, Witness and Exhibit Lists
11. Mr. Delaney's Pre Trial Brief
12. Employee's Witness and Exhibit List
13. Employer's Pre-Hearing Brief
14. Employer's Witness and Exhibit List
2
The Court overrules TPI's objection and holds this is a self-authenticating signed public record.
5
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent to the following recipients by these
methods of service on May 14, 2019.
Name Certified Via Via Sent to:
Mail Fax Email
George T. East X todd@toddeast.com
Attorney for Employee j ennifer@2toddeast.com
Cole Stinson, X cole.stinson@accidentfund.com
Attorney for Employer christine.spear@accidentfund.com
Penny Shr 1, Clerk of Court
Court of orkers' Compensation Claims
WC.CourtClerk@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.
.
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