The opinion
FILED
May 14, 2019
09:15 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT COOKEVILLE
David Sevin sky, ) Docket No.: 2018-04-0350
Employee, )
v. )
)
Tridens Builders, LLC, ) State File No.: 91341-2018
Employer, )
And )
)
Technology Ins. Co., ) Judge Robert Durham
Insurer. )
EXPEDITED HEARING ORDER AWARDING PAST TEMPORARY
DISABILITY BENEFITS
This case came before the Court for an Expedited Hearing on May 2, 2019. The
issues are whether Mr. Sevinsky is likely to prove entitlement to additional temporary
disability benefits as well as attorney's fees, and whether the matter is appropriate for
penalty review.' The Court holds Mr. Sevinsky is entitled at this stage to more temporary
disability benefits although not in the requested amount. In addition, the Court has
insufficient information to award attorney's fees at this time. Finally, Tridens and its
insurance carrier's conduct warrants penalty consideration.
History of Claim
The evidence is essentially undisputed. Mr. Sevinsky, age twenty-eight, worked
as project manager and heavy equipment operator for Tridens. On Thursday, November
8, 2018,2 he was cutting and carrying sections ofwrought iron pipe for a water-line when
1
Before the hearing, Tridens agreed to authorize treatment from Dr. Tarek Elalayli and pay all past out-
of-pocket expenses for reasonable and necessary treatment of Mr. Sevinsky's low-back pain. Tridens also
agreed to pay temporary disability benefits from March 25, 2019, which was when Dr. E1alayli took Mr.
Sevin sky off work until he had an MRI. The parties agreed to an average weekly wage of $662.11.
2
On cross-examination, Mr. Sevinsky acknowledged that various medical records list slightly different
1
he felt sudden pain down his back and into his leg. Although he kept working, he
stopped cutting pipe. He testified that he had never experienced problems with his back
before November 8. The next day, he told his supervisor, Justin Heck, that his back hurt,
although he didn't tell him how the injury occurred. 3
Over the weekend, Mr. Sevinsky rested, but on Monday morning his back pain
was so severe he could not get out of bed. He called Mr. Heck and reported he suffered a
work injury the previous Thursday. Mr. Heck replied that, since he did not report it on
Thursday, workers' compensation insurance would not cover it. Thus, Tridens would
"self-pay" the medical expenses, and they would consider it a "learning experience."
Tridens directed Mr. Sevinsky to Midtown Healthcare, where he received treatment on
November 14.
At Midtown, Mr. Sevinsky saw Nurse Practitioner Chad James. He told N.P.
James that he hurt his back "handling heavy steel at work," which caused back pain
radiating into his leg. N.P. James diagnosed a low-back strain and muscle spasm. He
prescribed medication and told Mr. Sevinsky he could go back to work if his symptoms
did not worsen.
However, Mr. Sevinsky testified his symptoms did worsen. This resulted in a trip
to the emergency room the next day due to severe back pain radiating into both legs. He
underwent a CT scan, which revealed broad-based disc bulges in his low back. Although
Mr. Sevinsky testified that providers told him to rest and see a specialist, the records do
not contain these recommendations.
In any event, Mr. Sevinsky did not return to work. He testified he had several
conversations and text exchanges with Mr. Heck and Kyle Knight, Tridens' H.R.
manager, about additional medical care and disability benefits, but his requests were to
no ·avail. At some point, Tridens offered him work sitting in a truck counting truckloads,
but he believed it to be a one-time assignment, and he did not feel he could sit in one
position for that long, so he declined.
On November 28, Mr. Sevinsky filed a Petition for Benefit Determination.
Tridens then stated it filed a claim with its carrier, Technology Insurance. On November
30, Mr. Sevinsky received a letter from Technology informing him that it received notice
of his claim. However, he testified that Technology never provided any benefits.
dates for the injury, and that he once called his supervisor to ask when the injury occurred. He testified
that, while he was not sure of the actual date when he reported it to the medical providers, he knew that it
was Thursday of that week.
3
Mr. Sevinsky admitted on cross-examination that the statement in his affidavit that he told Mr. Heck
about his injury on the day it occurred was incorrect.
2
On December 6, Mr. Sevinsky returned to the emergency room with continued
complaints. The next day, he went on his own to see N.P. Jennefer Dixon at Carthage
Family Wellness. N.P. Dixon, who is supervised by Dr. Richard Rutherford, placed Mr.
Sevinsky under restrictions of no lifting more than ten pounds for six weeks. Mr.
Sevinsky took the restrictions to Tridens and spoke with Mr. Knight and Lauren Beth
Heck, the office manager .. He testified they told him that since the restrictions were not
written by an authorized provider, they could not honor them, nor could they return him
to work. However, they provided him with their own panel of back specialists from
which to choose an authorized physician.
Mr. Sevinsky immediately tried to set an appointment with Dr. Tarek Elalayli, one
of the doctors on the list, but was told Technology must schedule it. However, after
several weeks and multiple attempts to communicate with the adjuster, Technology never
authorized a visit. So, with his attorney's help, Mr. Sevinsky finally scheduled a visit
with Dr. Elalayli for March 25, 2019.
Dr. Elalayli determined that, based on his examination and Mr. Sevinsky's history,
Mr. Sevinsky likely suffers from a disc herniation due to an injury at work. He
recommended an MRI and took Mr. Sevinsky off work until it could be performed. Mr.
Sevinsky testified that Technology received this report, but it did not authorize further
visits with Dr. Elalayli until the day before the hearing.
Mr. Sevinsky also testified that he has not worked since November 8, 2018. He
stated that sitting in one position, as well as the jostling and bouncing involved in using
heavy equipment, would have been impossible to endure. In addition, his job required
regular physical labor that would have exceeded his restrictions.
Mr. Sevinsky also introduced Dr. Rutherford's affidavit, in which he gave his
opinion that Mr. Sevinsky suffers from a "herniated lumbar disc, lumbar back pain with
radiculopathy affecting his left leg, and left foot drop." He concurred with N.P. Dixon's
lifting restriction and recommendation that Mr. Sevinsky contact Tridens or Technology
for a specialist referral. Finally, Mr. Sevinsky's counsel, Greg Groth, presented an
itemization stating that he spent 21.75 hours representing him up to the expedited
hearing.
Findings of Fact and Conclusions of Law
Mr. Sevinsky does not have to 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) (2018); McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
3
Given Tridens' concessions, the only issue concerning benefits is whether Mr.
Sevinsky is entitled to temporary disability benefits from November 12, 2018, to March
24, 2019. To receive these benefits, Mr. Sevinsky must show he is likely to prove: (1) a
disability from working as the result of a compensable injury; (2) a causal connection
between the injury and the inability to work; and (3) the duration of the period of
disability. See Shepherd v. Haren Canst. Co., Inc., 2016 TN Wrk. Comp. App. Bd.
LEXIS 15, at *13 (Mar. 30, 2016).
Here, Mr. Sevinsky testified that the emergency room providers took him off work
on November 15. However, he did not provide any medical proof to that effect. These
emergency room records do not mention work status. Except in the most obvious cases,
expert medical opinion is required to establish the elements above. See Young v. Young
Elec. Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 41, at *13 (Sept. 14, 2016). Thus, the
Court holds Mr. Sevinsky has not established entitlement to temporary total disability
benefits before December 10, 2018.
However, Mr. Sevinsky did provide sufficient evidence to show he is likely to
prove temporary partial disability from December 10, 20 18, through January 18, 2019.
Dr. Rutherford's affidavit confirmed that on December 10, N.P. Dixon placed Mr.
Sevinsky under a ten-pound lifting restriction for six weeks due to low back pain and
radiculopathy. He agreed with the restriction.
As to causation, Dr. Rutherford confirmed his office's instructions that Mr.
Sevinsky contact his "workers' compensation carrier and/or employer" to schedule an
appointment with a specialist. In addition, Dr. Elalayli's record stated that Mr.
Sevinsky's back pain and radiculopathy were "likely" due to a lumbar disc herniation
caused by an injury at work. When this evidence is combined with Mr. Sevinsky's
testimony, the Court holds it is sufficient to establish the likelihood that Mr. Sevinsky
will be able to prove causation at trial.
Finally, Mr. Sevinsky's undisputed testimony is that he took his restriction to his
supervisors, and they said they could not return him to work under unauthorized
restrictions. The Court therefore holds that Mr. Sevinsky has established he is likely to
prove entitlement to temporary partial disability benefits from December 10, 20 18,
through January 18, 2019.
The next issue is Mr. Sevinsky's request for attorney's fees pursuant to Tennessee
Code Annotated section 50-6-226(d)(1)(B). The Court cannot award fees at this time.
While Mr. Groth submitted an itemization of the time pursuing benefits for Mr. Sevinsky,
it was not accompanied by an affidavit attesting to the reasonableness and necessity of
the time or differentiating between Mr. Groth's time and that of his staff. Further, he did
not include a sworn statement as to his hourly fee or the reasonableness of his fee given
Mr. Groth's expertise and experience and the fees normally charged by attorneys within
4
the community. Thus, the Court defers any award of attorney's fees until this
information is properly before it.
Finally, Mr. Sevinsky requests a penalty assessment. Given Tridens' and its
carrier's apparent failure to meet their obligations under section 50-6-204, the Court finds
the request well-taken and refers this matter to the Compliance Unit for investigation.
IT IS, THEREFORE, ORDERED that:
1. Tridens shall pay to Mr. Sevinsky past temporary partial disability benefits in the
amount of $3,972.66.
2. Mr. Sevinsky's request for attorney's fees is denied at this time.
3. This claim shall be referred to the Compliance Unit for investigation and
determination as to whether a penalty is appropriate.
4. This matter is set for a Scheduling Hearing on July 9, 2019, at 9:00 a.m. C.S.T.
The parties or their counsel must call615-253-0010 or toll-free at 855-689-9049 to
participate in the hearing. Failure to call may result in a determination of the
issues without your participation.
5. 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.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 by email at
WCCompliance.Program@tn.gov.
ENTERED MAY 14,2019.
Ro ert V. Durham, Judge
Co,rt of Workers' Compensation Claims
5
X
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