The opinion
FILED
Mar 16, 2023
12:46 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Corey Richards, ) Docket No. 2021-06-0996
Employee, )
v. )
Federal Express Corp., ) State File No. 67786-2021
Employer, )
And )
Indemnity Insurance Co. of N. Am., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
The Court held an expedited hearing on March 9, 2023, on Corey Richards’s request
for benefits for a foot, ankle, and leg injury he suffered while working for Federal Express
Corporation. FedEx denied the claim, arguing that the injuries are idiopathic and
alternatively that a previous accident caused them. Although the Court rejects FedEx’s
contentions, it holds that on the current record, Mr. Richards has offered insufficient
medical proof. His request for benefits is denied at this time. The Court additionally refers
FedEx to the Compliance Program for the potential imposition of penalties.
Claim History
Mr. Richards has worked for FedEx for several years. He testified that he had
moved to Nashville for a new position within the company, and June 1, 2021, was his first
day. He was working in a refrigerated warehouse, standing on concrete for a nine-hour
shift with no breaks, loading and offloading pallets from a conveyor belt. He said his right
lower ankle and foot were in “pretty exceptional pain” by the end of the day. He began to
feel dizzy. He left the warehouse and later fainted in a driveway.
Mr. Richards was transported to the emergency room immediately afterward, where
he was seen for “syncope” and “fainting, uncertain cause.” He was taken off work for two
days.
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Mr. Richards testified that a few days later, FedEx directed him to a clinic to get a
“return to work” letter. He saw a nurse practitioner, who documented “[s]yncopal
episodes” and “[p]ain in joint involving right lower leg.” The nurse practitioner released
Mr. Richards from treatment and returned him to full-duty work.
After resuming work, Mr. Richards’s foot pain returned, causing him to visit another
emergency room in late June. He complained of “right ankle and foot pain” and “acute
exacerbation of chronic right lower leg pain.” The doctor recommended he see an
orthopedist and took Mr. Richards off work for two days.
Mr. Richards then talked to a supervisor, who advised him to see a primary care
physician. The supervisor also told Mr. Richards he would “try to talk to work comp,” but
Mr. Richards never heard back from him about that.
Mr. Richards eventually learned that the carrier had erroneously recorded that he
injured his knee from a fall after fainting—not that he was experiencing foot and ankle pain
that caused him to faint. Mr. Richards explained this to FedEx’s former attorney. He
testified that the attorney told him he needed to obtain medical proof on his own to show
that the injury was not idiopathic.
So, Mr. Richards saw multiple providers, beginning with primary care physician Dr.
William Halford, whom he saw that summer. He introduced two off-work slips from him.
However, Mr. Richards did not submit any records from these visits that described the
injury or its cause.
Around this same time, Dr. Geoffrey Watson saw Mr. Richards. A referral order
states that he diagnosed right posterior tibial tendonitis and referred Mr. Richards to
physical therapy. Again, no records of this visit were submitted.
On October 3, 2021, FedEx denied the claim on grounds that the “[i]ncident
appear[ed] idiopathic in nature and no medical documentation [was] received to support a
work related injury.” The cover letter, also dated October 3, stated, “The effective date of
denial is 06/01/21.”
In March 2022, Mr. Richards saw podiatrist Dr. Jeffery Poole twice and mentioned
the work incident both times. Dr. Poole diagnosed tarsal tunnel syndrome and at the first
visit wrote: “Patient states he works 1 day at FedEx on hard floors all day and then began
having excruciating pain into the arch. . . . Patient relates no history of injury or trauma
antecedent to that within the near past.” At the second visit, the doctor wrote:
[S]till maintains that he was working and walking and functioning fine up
until June 1, his first day at work [at] FedEx, when the pain started and
worsened significantly to the point where he is not able to stand and walk for
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prolonged periods of time. He relates no specific injury during the day that
he could specifically point to [w]hat brought this pain on.
The final word on the injury came from Dr. Halford. He wrote a letter in April 2022
that reads, “Mr. Richards has had pain in his right foot and ankle since an injury that
occurred at work on June 1, 2021. It appears by his history that his activity triggered more
than 51% of this painful syndrome.”
According to Mr. Richards, he has reached maximum recovery but might need
surgery in the future. Since his injury, when placed on restricted duty, FedEx did not
accommodate him, so he has not returned to work.
On cross-examination, Mr. Richards agreed that he had a previous injury to the same
leg in 2016. He said that the treatment was extensive; he needed eighteen surgeries. But
that injury involved the upper part of his lower right leg, as tibial and fibular fractures.
While later training as a pilot, Mr. Richards submitted thousands of medical records to the
Federal Aviation Administration to prove his leg was structurally sound. Further, for five
years before this injury, he performed all of his job duties at FedEx without difficulty.
Mr. Richards also disputed that he did not consult FedEx before seeking
unauthorized treatment. Rather, a supervisor and his personal insurance told him to treat
on his own and that they would talk with the workers’ compensation carrier about coverage.
Findings of Fact and Conclusions of Law
The Workers’ Compensation Law requires an employer to furnish medical
treatment for work-related injuries. Tenn. Code Ann. § 50-6-204(a)(1)(A) (2022). FedEx
argued that Mr. Richards’s injury was not work-related but rather was idiopathic, or “of
unknown cause.”
An idiopathic injury “generally does not arise out of the employment unless ‘some
condition of the employment presents a peculiar or additional hazard.’” Veler v.
Wackenhut Servs., No. E2010-00965-WC-R3-WC, 2011 Tenn. LEXIS 78, at *9 (Tenn.
Workers’ Comp. Panel Jan. 28, 2011). Conversely, an injury that occurs due to an
idiopathic condition is compensable “if an employment hazard causes or exacerbates the
injury.” McCaffery v. Cardinal Logistics, 2015 TN Wrk. Comp. App. Bd. LEXIS 50, at
*10 (Dec. 10, 2015).
Here, Mr. Richards credibly testified that working on his feet for nine hours on
concrete caused intense foot, ankle, and lower leg pain. FedEx counters that he was
“standing when he experienced the onset of pain in his leg[.]”
3
Perhaps a physician would agree that standing for several hours would not cause
intense foot pain and that the injury is idiopathic. But FedEx only authorized one provider,
a nurse practitioner to whom it directed Mr. Richards rather than offering him a panel.
FedEx never obtained a causation opinion from a physician. Its claim that the injury is
idiopathic is argument, not proof. See Lurz v. Int’l Paper Co., 2018 TN Wrk. Comp. App.
Bd. LEXIS 8, at *17 (Feb. 14, 2018) (parties and their lawyers cannot rely solely on their
own medical interpretations of the evidence to successfully support their arguments).
Moreover, by releasing Mr. Richards from care, the nurse practitioner essentially
placed him at maximum medical improvement, which he is not qualified to do. See Tenn.
Comp. R. & Regs. 0800-02-17-.25(2) (September, 2021) (“The authorized treating
physician is required and responsible for the employee’s maximum medical improvement
(MMI) date[.]”).
FedEx additionally argued that the previous injury caused his foot pain. But it
offered no medical proof to substantiate that. Mr. Richards convincingly explained that
the 2016 accident affected a different part of his leg and that he recovered fully from it.
Still, Mr. Richards, as the employee in a workers’ compensation case, has the burden
of proving all essential elements of his claim for benefits. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). He must
show that he is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-
239(d)(1).
Specifically, Mr. Richards must show an incident, or set of incidents, arising
primarily out of and in the course and scope of his employment. He must show, to a
reasonable degree of medical certainty, that the injury “contributed more than fifty percent
in causing the disablement or need for medical treatment, considering all causes.” A
“reasonable degree of medical certainty” means that, in the physician’s opinion, it is more
likely than not considering all causes as opposed to speculation or possibility. Tenn. Code
Ann. § 50-6-102(12).
The medical proof in this case is incomplete and does not conform to this definition
at this stage. Mr. Richards saw multiple providers, but he did not give a full set of records
from any of them.
Dr. Poole diagnosed tarsal tunnel syndrome; Dr. Watson diagnosed posterior tibial
tendonitis. The records contain contradictory diagnoses. But more importantly, they give
no definitive opinion on whether Mr. Richards’s foot and ankle condition arose primarily
out of his employment.
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The exception is Dr. Halford’s letter. It stated that “Mr. Richards has had pain in
his right foot and ankle since an injury that occurred at work on June 1, 2021. It appears
by his history that his activity triggered more than 51% of this painful syndrome.”
Reading this statement closely, it is insufficient proof of medical causation. Since
Dr. Halford’s records are incomplete, no evidence suggests that he considered other
potential causes for the foot pain. Moreover, the phraseology “it appears by his history”
conveys to this Court an element of impermissible speculation.
Therefore, the Court cannot find that Mr. Richards satisfied his burden to show that
his current foot, ankle, and lower leg condition arose primarily out of his employment. Id.
He is not likely on this record to prevail at a hearing on the merits. Having made that
determination, no need exists to discuss his request for disability benefits at this time.
Nothing precludes Mr. Richards from gathering additional evidence and renewing his
request for benefits, either at a later expedited hearing or at the compensation hearing.
Finally, the Court refers this case to the Compliance Program for consideration of
whether penalties are appropriate for FedEx’s failure to offer a panel under Tennessee Code
annotated section 50-6-204(a)(3)(A)(i) and Tennessee Compilation Rules and Regulations
0800-02-01.06(1) (February, 2018).
In addition, on this record it appears that FedEx did not decide compensability
timely. It sent the denial form on October 3, 2021 ̶ more than four months after the alleged
date of injury ̶ and the cover letter curiously stated that the denial is effective as on June 1.
See Tenn. Comp. R. & Regs. 0800-02-14-.04 (September, 2022) (“Decisions on
compensability shall be made by the adjusting entity within fifteen (15) calendar days of
the verbal or written notice of injury.”).
IT IS THEREFORE ORDERED:
1. Mr. Richards’s requested relief is denied at this time.
2. This case is set for a status hearing on May 8, 2023, at 9:30 a.m. Central. You
must call 615-532-9552 or at 866-943-0025 to participate.
3. The case is referred to the Compliance Program for consideration of penalties as
described above.
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ENTERED March 16, 2023.
________________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
Appendix
Technical record:
1. Petition for Benefit Determination, August 20, 2021
2. Petition for Benefit Determination, May 2, 2022
3. Dispute Certification Notice
4. Order Setting Status Hearing
5. Status Hearing Order
6. Hearing Request
7. Motion for Substitution of Counsel
8. Agreed Order of Substitution of Counsel
9. Employer’s Response to Employee’s Request for Expedited Benefits
10. Employer’s Pre-Expedited Hearing Brief
Evidence:
1. Declaration of Mr. Richards
2. Wage statement
3. Denial form/letter
4. Composite medical records
5. Medical bills-Identification only
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on March 16, 2023.
Name Certified Regular Email Sent to
Mail mail
Corey Richards, X X X Chevycamaro1891@gmail.com
employee 956 Glastonbury Rd.
Nashville TN 37217
James Tucker, X jtucker@manierherod.com
employer’s attorney
Compliance WCCompliance.Program@tn.gov
Program
_______________________________________
Penny Shrum
Clerk, 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 *
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