The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
ANTHONY HAYES, ) Docket No. 2018-08-1204
Employee, )
V. )
ELMINGTON PROPERTY MGMT., ) State File No. 56539-2018
Employer, )
And )
ACCIDENT FUND GENERAL INS. ) Judge Deana C. Seymour
CO., )
Carrier. )
EXPEDITED HEARING ORDER
The Court convened an Expedited Hearing on June 21, 2019, to determine whether
Elmington Property Management should be required to provide Mr. Hayes additional
temporary disability and medical benefits for injuries incurred in a workplace fall.
Elmington argued it owes no further temporary disability benefits but agreed he could
return to his authorized treating physician for treatment of injuries related to the fall. The
Court holds Mr. Hayes would not likely prevail at a hearing on the merits regarding his
claim for temporary disability benefits but may return to his treating physician for
reasonable and necessary treatment.
History of Claim
Mr. Hayes worked as a maintenance technician for Elmington. On July 27, 2018,
he injured multiple body parts at work when he fell from a raised dumpster platform
down to the concrete below. He reported his fall and received authorized treatment at an
emergency clinic. The clinic diagnosed Mr. Hayes with abrasions to his right hand,
contusions to his left knee and elbow, and a bruise and abrasion on the left side of his
head. The clinic placed him on light duty restrictions and referred him for orthopedic
treatment.
After receiving this referral, Mr. Hayes selected Dr. David Deneka from a panel.
Dr. Deneka conservatively treated Mr. Hayes’s left knee and placed him on restricted
duty from August 13 to September 17 before placing him at maximum medical
improvement. He assigned Mr. Hayes no permanent impairment for his left-knee injury
but indicated Mr. Hayes should return as needed if he had further problems.
In this action, Mr. Hayes contended Elmington failed to provide adequate medical
treatment for all of his injuries. He specifically mentioned neck and back issues that were
not addressed and complained of numbness in his right hand and problems walking. Mr.
Hayes testified he advised his physicians of these issues.
Mr. Hayes further argued that Elmington required him to work outside his
restrictions when he returned to light-duty work, which caused him further injury.
Elmington stipulated that Mr. Hayes sustained a work-related fall on July 27 and
indicated he could return to Dr. Deneka for further treatment of his work-related injuries.
It contended, however, that it provided Mr. Hayes with all benefits to which he was
entitled. Elmington also claimed, as evidenced by the medical records, that Mr. Hayes
never mentioned neck or back issues before filing his Petition for Benefit Determination.
Findings of Fact and Conclusions of Law
At an Expedited Hearing, Mr. Hayes must provide sufficient evidence to show he
is likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
While the Court recognizes the medical records are silent concerning neck and
back complaints, the Court found Mr. Hayes’s testimony credible. He specifically
testified he advised his physicians of his neck and back issues. Furthermore, Dr.
Deneka’s records revealed that Mr. Hayes landed on his left side when he fell. The
emergency clinic records support this finding by documenting contusions to Mr. Hayes’s
left knee and left elbow as well as a bruise and abrasion on the left side of his head. These
records also indicate Mr. Hayes fell onto concrete. Based on this proof, the Court holds
Mr. Hayes is likely to prevail at a hearing on the merits concerning authorized medical
treatment for injuries related to the fall.
Turning to Mr. Hayes’s request for temporary disability benefits, the Court finds
Mr. Hayes is not likely to prevail at a hearing on the merits. Mr. Hayes returned to light
duty work following his accident, so his recovery, if any, lies in temporary partial
disability benefits. Temporary partial disability benefits are payable while the
injured worker can resume some gainful employment but has not reached
maximum recovery. Barrett v. Lithko Contracting, Inc., 2016 TN Wrk. Comp. App.
Bd. LEXIS 70, at *8 (June 27, 2016). To prove entitlement to these benefits, Mr. Hayes
must show his treating physician released him to return to work with restrictions before
maximum medical improvement and Elmington either (1) could not return him to work
within his restrictions or (2) could not provide restricted work for a sufficient number of
hours and/or at a rate of pay equal to or greater than his average weekly wage on the date
of his injury. See Jones v. Crenor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd.
LEXIS 48, at *7-8 (Dec. 11, 2015). Mr. Hayes presented no proof of income loss while
he worked in a light-duty capacity. As such, the Court holds Mr. Hayes is not likely to
prevail at a hearing on the merits for temporary disability benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Elmington shall set an appointment for Mr. Hayes with his authorized
treating physician, Dr. David Deneka, for treatment of his work-related injuries under
Tennessee Code Annotated section 50-6-204.
2. Mr. Hayes’s request for temporary disability benefits is denied.
3. This matter is set for a telephonic Status Hearing on August 26, 2019, at
9:00 a.m. Central Time. You must call toll-free at 866-943-0014 to participate in the
hearing.
ENTERED July 1, 2019.
“i,
* *.
‘aj ——————— ——___
Judge Deana C. Seyniour
Court of Workers’ Compensation Claims
APPENDIX
Technical record:
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing with Mr. Hayes’s affidavit
Show Cause Order
Motion of Employer to Dismiss Employee’s Claim for Workers’ Compensation
Benefits and Memorandum of Law in Support of Same
6. Employee’s Response to Motion of Employer to Dismiss Employee’s Claim for
Workers’ Compensation Benefits and Memorandum of Law in Support of Same with
attachments
AR WN >
7. Order on Show Cause Hearing, Employer’s Motion to Dismiss, and Order Setting
Expedited Hearing
8. Employer’s November 2, 2018 letter to Bureau mediator
Exhibits:
1. Employer’s First Report of Work Injury or Illness
2. Wage Statement
3. Employee’s Choice of Physician
4, Employment Offer Letter
5. Two photographs of location where injury occurred
6. Twelve photographs representing the areas Mr. Hayes was asked to clean
(Collective)
Four photographs of Mr. Hayes’s injuries (Collective)
Employee Statement of Incident
9. Employee’s Answers to Employer’s First Set of Interrogatories and Request for
Production of Documents
10. Medical records from OrthoMemphis (Collective)
11. Medical records from Methodist Healthcare Minor Medical Centers (Collective)
om
CERTIFICATE OF SERVICE
I certify that a correct copy of this Order was sent to these recipients as indicated
on July _ist_, 2019.
Name Certified | Via Via Service sent to:
Mail U.S. | Email
Anthony Hayes, x x General Post
Employee 555 South 3™ Street
Memphis, TN 38101-9998
Stephen P. Miller, x smiller@mckuhn.com
Employer’s Attorney
fe Liye dhe Mn
Penily Shruvi/ Court Clerk
Court of Wikers’ Compensation Claims
WC.CourtClerk @ tn.gov
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.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[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]
L] Temporary disability benefits
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
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 *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee
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,
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
, certify that | have forwarded a true and exact copy of this
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-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, | 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 Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam 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. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
ssl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth 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
| 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
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082