The opinion
FILED
Mar 01, 2022
08:30 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
THOMAS ERICKSON, ) Docket No. 2020-08-0880
Employee, )
v. )
FEDERAL EXPRESS CORP., )
Employer, )
And, ) State File No. 4142-2020
AGRI GENERAL INS. CO., )
Carrier, )
And, )
ABIGAIL HUDGENS, as )
ADMINISTRATOR ) Judge Allen Phillips
of the BUREAU OF WORKERS’ )
COMPENSATION, SUBSEQUENT )
INJURY AND VOCATIONAL )
RECOVERY FUND. )
EXPEDITED HEARING ORDER DENYING BENEFITS
Mr. Erickson requested temporary total disability benefits for lost time he claimed
was made necessary by a February 2019 injury. Federal Express denied that Mr. Erickson
sustained an injury in 2019. The Court heard the issue at an Expedited Hearing on February
8, 2022 and agrees with Federal Express.
History of Claim
Mr. Erickson claimed Federal Express owed him temporary total disability
beginning September 30, 2020, the date he underwent a back surgery by Dr. Samuel
Schroerlucke. At the time he filed his hearing request, Mr. Erickson said the surgery was
made necessary by an injury caused by using a sledgehammer on February 28, 2019. He
said that he reported the injury to his supervisor the same day.
Mr. Erickson also said that he received non-work-related long-term disability
benefits, but those “were recently terminated.” After that termination, he asked Federal
Express to begin paying the requested benefits. Mr. Erickson contended Dr. Schroerlucke
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was an authorized physician, and the restrictions he placed on his activities entitled him to
the benefits. Federal Express refused, asserting that it provided treatment from Dr.
Schroerlucke under the future medical provisions of an earlier settlement agreement, and
it did not owe additional disability benefits.
The referenced settlement agreement resolved Mr. Erickson’s claim for a May 27,
2016 back injury that resulted in surgery by Dr. Glenn Crosby. As part of the agreement,
Federal Express agreed to pay for future medical treatment with Dr. Claiborne Christian as
the authorized physician.1
Mr. Erickson saw Dr. Christian in 2018 because of ongoing low-back pain from the
May 2016 injury, but he continued to work. Mr. Erickson returned to Dr. Christian in
March 2019 and complained of pain that was “constant and worse after activity,” but he
did not report a new injury. Dr. Christian obtained an MRI and thought Mr. Erickson
needed to see a “spine specialist.” Mr. Erickson chose Dr. Schroerlucke from a panel
offered by Federal Express.
Before seeing Dr. Schroerlucke, Mr. Erickson returned on his own to Dr. Crosby in
June 2019. He told Dr. Crosby that he returned to work after his 2016 surgery and had no
problems at work until April 2019. Dr. Crosby ordered an MRI and believed Mr. Erickson
needed a spinal fusion.
Mr. Erickson offered Dr. Crosby’s affidavit, who said the following as to causation:
I am in the best position to state the cause because only I had the opportunity
to treat Mr. Erickson both before the 2019 injury and after the 2016 surgery.
In my opinion to a reasonable degree of medical certainty, the surgery was
due to his continued work as a welder moving heavy objects over time.
(Emphasis in original). These arduous activities . . . together with the use of
a sledgehammer, made the fusion . . . medically necessary and was, in my
opinion, 75%-80% of the cause of his work injuries. . . . In short, this is not
a specific injury event, but rather a gradual injury over time.
For its part, Federal Express offered Dr. Christian’s affidavit, in which he said Mr.
Erickson’s need for treatment was more than fifty percent related to the 2016 injury. He
further said he reviewed an affidavit, in which Mr. Erickson related the sledgehammer
event in February 2019; he confirmed the statement in his record that Mr. Erickson did not
tell him about that incident. Finally, Dr. Christian said he believed the need for a fusion
was more than fifty percent related to the 2016 injury because of spine instability due to
the 2016 surgery.
Federal Express also offered Dr. Schroerlucke’s affidavit. He said he first saw Mr.
Erickson in December 2019 upon Dr. Christian’s referral, and that Mr. Erickson told him
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The evidence is silent as to why Dr. Crosby was not designated.
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about the 2016 injury and surgery. Dr. Schroerlucke agreed with Dr. Crosby that Mr.
Erickson needed a spinal fusion, and he agreed with Dr. Christian that it was needed to
repair instability. He said the need was more than fifty percent related to the 2016 injury.
Finally, like Dr. Christian, he said Mr. Erickson “at no time” told him about a February
2019 injury.
Mr. Erickson offered two of his own affidavits. In the first, filed at the time of his
hearing request, he said, “I was injured on or about 2-28-19 [when] I was working on a
piece of equipment using a sledgehammer[.]” In the second, filed after Federal Express
filed its brief, he said that “while I had not had a new distinct injury (i.e., I use a
sledgehammer every day at work), I had increasing lower back and left leg pain.” He said
he told Dr. Christian in March 2019 that he had not been able to work for the last three
weeks and that was “how I arrived at the injury date of February 29, 2019 because it was
three weeks prior to” the visit.
Mr. Erickson also said in his second affidavit that he was not surprised that his
supervisor, Jackie Hankins, denied that he reported the injury, since he “mentioned it to
him in passing, informing him that I was having problems with my back again.” Mr.
Erickson said that when Mr. Hankins asked him what was wrong, he “said this
sledgehammer and this heavy work.” He also said Dr. Crosby’s notation of an April 2019
onset should have read February.
At the hearing, Mr. Erickson testified that he “believed” his injury was gradual and
said his pain began in January 2019 because of his “very physical” work. He said he used
a sledgehammer “pretty much every day.” He said he told Mr. Hankins of his pain when it
became “unbearable,” but he “didn’t know what was wrong.”
Federal Express confronted Mr. Erickson with his inconsistent histories regarding
the date of injury. It specifically pointed out there was no February 29 in 2019, and that the
choice of physician form which included Dr. Schroerlucke listed a date of injury of May
2016, not 2019. Additionally, Mr. Erickson conceded he changed his description of a
specific incident in his first affidavit to a gradually-occurring injury. Finally, in an affidavit,
Mr. Hankins said Mr. Erickson never reported an injury in February 2019, and he
maintained that position when Mr. Erickson cross-examined him.
Findings of Fact and Conclusions of Law
At this Expedited Hearing, Mr. Erickson must show he would likely prevail at a
hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2021).
To qualify for temporary total disability benefits, Mr. Erickson must show: (1) that
he became disabled from working due to a compensable injury; (2) that there is a causal
connection between the injury and his inability to work; and (3) the duration of the period
of disability. Hibbitts v. Royal d/b/a Royal Guttering, 2021 TN Wrk. Comp. App. Bd.
3
LEXIS 10, at *6 (Mar. 23, 2021). The Court finds he did not prove his disability resulted
from any injury in 2019.
Rather, the evidence supports a finding that Mr. Erickson’s disability resulted from
the 2016 injury. Both Drs. Christian and Schroerlucke said so. Conversely, even though
Dr. Crosby said the 2019 “injury” caused the disability, he pointed to an April 2019 onset,
inconsistent with Mr. Erickson’s allegations. Moreover, Mr. Erickson provided other
inconsistent dates of injury, in both the medical records and in his sworn testimony before
and at the hearing. Finally, he changed his theory to a gradually-occurring injury from one
resulting from a specific incident.
Under law, an employee’s entitlement to temporary total disability benefits ends
when he either reaches maximum medical improvement or is able to return to work. Smith
v. TrustPoint Hosp., LLC, 2021 TN Wrk. Comp. App. Bd. LEXIS 1, at *22 (Jan. 26, 2021).
Mr. Erickson reached maximum medical improvement from his 2016 injury long ago and
then returned to work. Thus, he cannot recover further temporary disability benefits for
treatment of that injury.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Erickson’s request for temporary total disability is denied.
2. The Court sets a Status Hearing on Monday, April 11, 2022, at 10:30 a.m. Central
Time. The parties must call 731-422-5263 or toll-free 855-543-5038 to participate
in the hearing.
ENTERED March 1, 2022.
______________________________________
JUDGE ALLEN PHILLIPS
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits
1. Collective Medical Records of Drs. Christian, Crosby and Schroerlucke
2. Wage Statement
3. Affidavit of Dr. Claiborne Christian
4. Affidavit of Dr. Samuel Schroerlucke
5. Affidavit of Jacky Hankins
6. Affidavit of Dr. Glenn Crosby
7. Affidavit of Mr. Erickson
8. Second Affidavit of Mr. Erickson
9. Employee’s Choice of Physician Form (C-42)
10. Copy of February 2019 calendar
Technical Record
1. Request for Expedited Hearing
2. Plaintiff’s Motion to Compel Payment of TTD Benefits
3. Employer’s Pre-Hearing Brief Opposing Employee’s Request
4. Subsequent Injury Fund’s Response to Employee’s Request
5. Employee’s Motion for Extension of Time to Obtain Affidavit of Dr. Glenn
Crosby and to File a Response to Employer’s Brief
6. Employer’s Response in Opposition to Employee’s Request for Extension of Time
7. Order Continuing Expedited Hearing
8. Employee’s Response to Employer’s Brief in Opposition
9. Employer’s Supplemental Pre-Hearing Brief
10. Order Resetting Expedited Hearing
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on March 1, 2022.
Name Via Email Service sent to:
Steve Taylor, Employee’s Attorney X staylor@tcmfirm.com
Stephen P. Miller, X smiller@mckuhn.com
Employer’s Attorney mdoherty@mckuhn.com
Timothy Kellum, X timothy.kellum@tn.gov
Subsequent Injury Fund Attorney
______________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
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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: “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.
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 *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
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]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082