The opinion
FILED
Sep 10, 2021
07:26 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
James McGauvran, ) Docket No. 2020-06-0558
Employee, )
v. )
ATOS Syntel, Inc., ) State File No. 32368-2019
Employer, )
And )
Hartford Accident & Indemnity Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
James McGauvran fell approximately four feet from a concrete wall while checking
his work email and calendar and vaping in a designated smoking area. ATOS Syntel denied
the claim, asserting that he did not suffer an injury as that term is defined in the Workers’
Compensation Law and the injury is idiopathic. For the reasons below, the Court holds
that Mr. McGauvran is likely to prevail at a hearing on the merits that he suffered a
compensable injury and awards temporary disability benefits.1
Claim History
Mr. McGauvran worked for ATOS, an international technology-services company,
managing twenty-six employees in the United Kingdom, India and the United States.
1
This is the second expedited hearing order in this case. Previously, the Court found Mr. McGauvran was
likely to prevail at a hearing on the merits regarding whether the alleged injury is compensable but, on the
parties’ agreement, awarded no benefits. ATOS appealed, and the Appeals Board vacated and remanded.
The Board held that the plain language of section 50-6-239(d) contemplates that the purpose of an expedited
hearing is to allow a workers’ compensation judge to “hear disputes over issues . . . concerning the provision
of temporary disability or medical benefits” using the applicable statutory standard of proof. Afterward,
the parties supplemented the record so that, if appropriate, the Court may award benefits.
1
Mr. McGauvran testified that he was performing these job duties when he was
injured on April 23, 2019. Specifically, Mr. McGauvran went to the parking ramp next to
his office to smoke in an area nicknamed the “third-floor meeting room.” He said that the
space was frequently used for smoking but also for work discussions with his manager.
Mr. McGauvran sat on a nearby wall and began using a vaping device. He explained he
was trying vaping in an attempt to quit smoking cigarettes. He testified that, while
reviewing emails and his calendar on his phone, he began coughing so hard that he “passed
out” and fell backward off the wall.
Mr. McGauvran broke his neck and toe from the fall. He sought emergency
treatment that included fusion surgery. According to Mr. McGauvran, he suffered serious
complications that require additional treatment.
The parties jointly submitted medical records and bills and agreed to their
admissibility. As to treatment, the records stated Mr. McGauvran underwent emergency
treatment that same day, reporting the same mechanism of injury and confirming fractures
to the C7 and left toe. Dr. Chine Logan, a neurosurgeon, performed cervical spine surgery
two days later. Mr. McGauvran saw him for follow up on June 12; records for additional
treatment were not filed. As for the bills, they total $209,649.84 and represent sums owed
to various physicians and the hospital. While the parties agreed the bills are true and
accurate, they did not stipulate that they are reasonable, necessary and work-related.
The parties stipulated that an initial temporary disability award would run from
April 23 through May 15, and at the maximum compensation rate for the date of injury of
$1,021.90, Mr. McGauran would be entitled to $3,211.69. They further agreed, for
purposes of the expedited hearing, that between April 23 and May 15, he was out of work
and either not paid or had to use paid time off.
Findings of Fact and Conclusions of Law
Mr. McGauvran must show that he is likely to prevail at a hearing on the merits.
Tenn. Code Ann. § 50-6-239(d)(1) (2020); McCord v. Advantage Human Resourcing, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Injury Arising Primarily out of Employment
To prove a compensable injury, Mr. McGauvran must show that it arose primarily
out of and in the course and scope of his employment. Tenn. Code Ann. § 50-6-102(14).
An injury occurs in the course of employment if it takes place while the employee was
performing a duty that he was employed to perform. Jacobs v. Bridgestone Americas Tire
Operations, LLC, 2018 TN Wrk. Comp. App. Bd. LEXIS 4, at *9 (Feb. 7, 2018). Thus,
the course of employment requirement focuses on the time, place, and circumstances of the
injury. Id. at *10. The “arising out of” requirement refers to causation and means “cause
in the sense that the accident had its origin in the hazards to which the employment exposed
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the employee while doing his work.” Navyac v. Universal Health Servs., 2016 TN Wrk.
Comp. App. Bd. LEXIS 16, at *15 (Mar. 31, 2016) (citations omitted).
Focusing on the place and circumstances, Mr. McGauvran testified that he fell while
vaping in a designated smoking area, dubbed the “third floor meeting room,” where he had
previously discussed work with his manager while smoking. ATOS argued that Mr.
McGauvran was not performing his job duties or otherwise providing a benefit to it because
he was vaping when he became injured. This argument ignores his unrefuted testimony
that he was working while on this break, reviewing his emails and calendar on his phone.
ATOS further contended that Mr. McGauvran was vaping for the first time, and his
fall was “100% caused by Employee’s personal action of vaping.” Whether it was Mr.
McGauvran’s first time vaping is immaterial; he could have coughed from smoking
tobacco as well. Rather, Tennessee has long recognized the “personal comfort doctrine,”
which generally brings injuries suffered by employees while on authorized breaks,
including smoke breaks, within the umbrella of compensable injuries. See Jacobs, at *11-
12. Moreover, “the workers’ compensation law does not expressly state that the employee
must, at the time of the injury, have been benefiting his or her employer; it merely states
that the injury must be one ‘arising out of and in the course of the employment.’” Id. at
*12.
ATOS additionally argued that the injury is idiopathic. “An idiopathic injury is one
that has an unexplained origin or cause, and generally does not arise out of the employment
unless some condition of the employment presents a peculiar or additional hazard.’”
McCaffery v. Cardinal Logistics, 2015 TN Wrk. Comp. App. Bd. LEXIS 50, at *9 (Dec.
10, 2015) (citations omitted). An injury that occurs due to an idiopathic condition is
compensable “if an employment hazard causes or exacerbates the injury.” Id. at *10.
ATOS argues that Mr. McGauvran’s injury was caused by vaping and not a hazard of
employment.
In McCaffery, the employee was driving when he sneezed and lost control of his
truck. The employer argued that the sneeze initiated the chain of events that caused the
employee’s injuries. The Appeals Board disagreed, stating that the focus is on “the causal
link between the employment and the accident or injury, rather than a causal link between
the employment and the idiopathic episode.” Id. at *11. Applying that rationale, the
Court’s focus should be on the causal link between Mr. McGauvran’s work as a manager
and the accident he suffered while reading emails and reviewing his calendar. The Court
finds his employment as a sufficient connection. He is likely to prevail at a hearing on the
merits that he suffered an injury arising primarily out of and in the course and scope of
employment, which was not idiopathic in nature.
3
Requested Relief
In light of the previous conclusion, ATOS must provide treatment, free of charge,
made reasonably necessary by the work accident. See Tenn. Code Ann. § 50-6-
204(a)(1)(A). In circumstances where an employer refuses to provide medical treatment
and/or denies the employee’s claim, the employer bears the risk of being held responsible
for medical expenses incurred by the employee in the event the claim is deemed
compensable. Young v. Young Elec. Co., 2016 TN Wrk Comp App Bd LEXIS 24, at *16
(May 25, 2016); and McCord, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *13 (“[A]n
employer who elects to deny a claim runs the risk that it will be held responsible for medical
benefits obtained from a medical provider of the employee’s choice[.]”).
Therefore, Mr. McGauvran is entitled to any additional, reasonably necessary treatment
with Dr. Logan.
Turning now to the bills, in Eaves v. Ametek, 2018 TN Wrk. Comp. App. Bd. LEXIS
53, at *8 (Sept. 14, 2018), the Appeals Board held that medical bills were inadmissible,
when the employee offered no proof that the bills were reasonable, necessary, or causally-
related to the work accident. The stipulation here does not satisfy those requirements.
Therefore, the Court cannot order payment of the medical bills at this time.
Finally, considering the parties’ stipulations and the compensability holding, Mr.
McGauvran is likely to show at a hearing on the merits that he is entitled to temporary
disability benefits totaling $3,211.69.
Fees
Mr. McGauvran’s attorney seeks an award for fees under Tennessee Code
Annotated section 50-6-226(d)(1)(B).
The Appeals Board has held that “a decision to award attorneys’ fees and expenses
at an interlocutory stage of a case should be made only in extremely limited circumstances.”
Travis v. Carter Express, 2019 TN Wrk. Comp. App. Bd. LEXIS 25, at *10 (June 24, 2019)
(emphasis in original). Further, “although a finding of wrongfulness may ultimately
support an award of reasonable attorney’s fees and costs in accordance with section 50-6-
226(d)(1)(B), it does not, standing alone, support an award of attorney’s fees and costs at
an interlocutory stage of the case. Id. at *13 (emphasis in original). Also:
[W]hen an employer denies a claim or refuses to initiate benefits based on an
unsettled issue of law or on a reasonable interpretation of the facts available
to it at the time the claim is denied, even if that denial is later found to be
wrongful, the court should delay an award of attorney’s fees until the
litigation has run its course and there is no longer a question as to the
4
compensability of the claim or whether the employee is owed workers’
compensation benefits.
Id. at *14 (emphasis added).
Here, the Court finds that this case presents no “extremely limited circumstances”
favoring a fee award at the interlocutory stage. Mr. McGauvran may renew his request for
fees at the compensation hearing if the question of compensability no longer exists.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. ATOS must authorize any additional medical treatment made reasonably necessary by
the work accident with Dr. Chine Logan.
2. ATOS must pay Mr. McGauvran temporary disability benefits totaling $3,211.69. His
attorney is entitled to a twenty-percent fee award from this sum.
3. No payment/reimbursement of medical bills, and no award of additional attorney’s fees,
are appropriate at this time.
4. This case is set for a status hearing on November 8, 2021, at 9:45 a.m. Central Time.
You must call (615) 532-9552 or (toll-free) (866) 943-0025. Failure to appear might
result in a determination of the issues without your further 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 September X
9, 2021.
10
_____________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits:
1. Petition for Benefit Determination
2. Amended Petition for Benefit Determination
3. Dispute Certification Notice
4. Request for Expedited Hearing and Declaration of Mr. McGauvran
5. Status Hearing Order, November 17, 2020
6. Status Hearing Order, February 8, 2021
7. Deposition Transcript
8. Docketing Notice and Order
9. Declaration of James McGauvran and attached photos
10. Employer’s Response to Employee’s Petition for Benefit Determination
11. Compensation Hearing Pre-Trial Statement of Petitioner
12. Expedited Hearing Order (Decision on the Record)
13. Appeals Board Opinion
14. Order, July 27, 2021
15. Joint Submission of Medical Records and Bills
a. Skyline Medical Center Records
b. Nashville Neurosurgery Associates Records
c. Hendersonville Medical Center Records
d. Itemized billing
16. Stipulations, September 1, 2021
17. Docketing Notice
18. Joint Notice
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on September 9, 2021.
Name Certified Via Via Service sent to:
Mail Fax Email
Jim Higgins, employee’s X jsh@higginsfirm.com
attorney Stephanie@higginsfirm.com
Blair Cannon, X l.blair.cannon@thehartford.com
employer’s attorney
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
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Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
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