The opinion
FILED
Apr 25, 2024
08:48 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
KENNETH M. JONES, ) Docket No.: 2022-08-1014
Employee, )
v. )
VALERO MEMPHIS REFINERY, )
Employer, ) State File No.: 15005-2022
And )
ACE AMERICAN INS. CO., )
Carrier. )
) Judge Shaterra R. Marion
EXPEDITED HEARING ORDER GRANTING BENEFITS
IN PART
The Court held an expedited hearing on April 18, 2024, on Mr. Jones’s request for
medical benefits for his wrist and hand injury. He also requested temporary disability
benefits despite the fact he has not missed work due to his alleged injury. Valero argued
that Mr. Jones received all treatment that the law affords for his injury.
Upon consideration of the evidence and the positions of the parties, the Court grants
Mr. Jones’s request to return to the doctor but denies his request for temporary disability
benefits.
History of Claim
Mr. Jones alleged he injured his wrists and hands when he fell at work on May 16,
2021. After the injury, he stopped doing any sort of outside or physical work. However, a
few months after the injury, when picking up bags at home, he testified that he felt
symptoms in his hands. He knew then that he had a problem stemming from his work-
related injury.
Mr. Jones requested medical treatment, and Valero provided a panel from which he
selected Dr. Christian Fahey. Dr. Fahey ordered x-rays that showed no objective evidence
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of injury. He diagnosed a hand and wrist contusion and recommended home exercises. He
also placed Mr. Jones at maximum medical improvement in February 2022 and noted that
he could return “PRN.”
Mr. Jones testified he then saw a Dr. Weller on his own. 1 He stated Dr. Weller
performed two injections and ordered an MRI.
Mr. Jones also testified that Dr. Weller referred him back to Dr. Fahey, but Valero
would not authorize the visit. According to Mr. Jones, he still experiences pain in his hands
and wrists.
Dr. Fahey testified that he has not seen Mr. Jones since releasing him and does not
have any additional treatment to offer him. Further, he does not anticipate Mr. Jones
needing any future medical care. Therefore, Valero argued that Mr. Jones received all the
medical benefits he is entitled for his work injury.
As to temporary disability benefits, Mr. Jones testified that he did not miss work
after his injury.
Findings of Fact and Conclusions of Law
Mr. Jones has the burden of proving he is likely to prevail at a hearing on the merits
on his claim for medical and temporary benefits for an alleged wrist and hand injury. Tenn.
Code Ann. § 50-6-239(c)(6) (2023); McCord v. Advantage Human Resourcing, 2015 TN
Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
On the issue of medical benefits, Valero argued that Mr. Jones did not establish
entitlement to additional treatment because Dr. Fahey testified he had nothing more to offer
him. In other words, Valero seeks a ruling that Mr. Jones has no further right to medical
benefits.
By law, parties may settle the issue of future medical benefits if a judge reviews and
approves the settlement. Tenn. Code Ann. § 50-6-240(d). But “[u]nless a court terminates
an employee’s entitlement to medical benefits or approves a settlement in which the parties
reach a compromise on the issue of future medical benefits, an injured worker remains
entitled to reasonable and necessary medical treatment causally-related to the work injury.”
Limberakis v. Pro-Tech Sec., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 53, at *7 (Sept.
12, 2017). This is especially true for interlocutory hearings and where the employer
accepted the claim as compensable. Id. at *9.
1
The parties did not submit Dr. Weller’s records into evidence.
2
Here, the Court has not terminated Mr. Jones’s benefits by approval of a settlement
between the parties. Further, this hearing seeks interlocutory relief. Although Dr. Fahey
stated that he has no additional treatment to offer Mr. Jones, his opinions are based on
diagnostic testing and an examination dating back two years. Mr. Jones credibly testified
that he has continuing pain from his work injury. “An employee’s assessment as to his or
her own physical condition is competent testimony that is not to be disregarded.” Id. at *6.
Therefore, Mr. Jones showed that he will likely prevail at trial is establishing his
entitlement to reasonable and necessary medical treatment causally related to his work
injury, which includes a return visit to his authorized treating physician, Dr. Fahey.
Turning now to Mr. Jones’s claim to temporary disability benefits, the Appeals
Board laid out the requirements for eligibility for these benefits in Jones v. Crencor Leasing
and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). One of those
requirements is that the employee show “the duration of the period of disability.” Id.
Here, Mr. Jones testified he did not miss any time from work. Thus, he is not eligible
for temporary disability benefits.
IT IS THEREFORE ORDERED as follows:
1. Mr. Jones’s request for a return visit to Dr. Fahey is granted.
2. Mr. Jones’s request for temporary disability benefits is denied.
3. The Court sets a status conference for June 25, 2024, at 1:00 p.m. Central Time.
The parties must call (866) 943-0014 to participate. Failure to call might result in a
determination of the issues without the party’s participation.
4. Unless an 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
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 confirmation within seven business days
may result in a penalty assessment for non-compliance. For questions as to
compliance, contact the Workers’ Compensation Compliance Unit by email at
WCCompliance.Program@tn.gov.
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ENTERED April 25, 2024.
________________________________________
Judge Shaterra R. Marion
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Deposition of Dr. Christian Fahey, with exhibits
2. Wage Statement
3. Choice of Physician Form
4. First Report of Injury
5. Referral to hand physical therapy
Marked for Identification Only:
6. Single page medical record without physician signature
7. Fit for duty evaluation
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. First Request for Expedited Hearing, with affidavit
4. Second Request for Expedited Hearing, with affidavit
5. Jan. 23, 2024, Status Order
6. Employer Witness and Exhibit List
7. Employer Response to Hearing on the Record
8. April 10, 2024, Status Order
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on April 25, 2024.
Name Regular Email Sent to
Kenneth Jones, X X 6639 Olivia Forest Road
Employee Memphis, TN 38141
kmjoneschamp@gmail.com
Donna Wilkerson, X dwilkerson@wimberlylawson.com
Employer’s Attorney bcopeland@wimberlylawson.com
_______________________________________
Penny Shrum
Clerk, Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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Right to Appeal:
If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation
Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims before the expiration of the deadline.
If the order being appealed is “expedited” (also called “interlocutory”), or if the
order does not dispose of the case in its entirety, the notice of appeal must be filed
within seven (7) business days of the date the order was filed.
If the order being appealed is a “Compensation Order,” or if it resolves all issues
in the case, the notice of appeal must be filed within thirty (30) calendar days of
the date the Compensation Order was filed.
When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,
if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar
days after filing 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 filing 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 your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. If no court
reporter was present at the hearing, you may request from the Court Clerk the audio
recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your
appeal, which the Appeals Board has emphasized is important for a meaningful review of
the case, a licensed court reporter must prepare the transcript, and you must file it with the
Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,
and you will receive notice once it has been submitted. For deadlines related to the filing of
transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the
Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)
4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties.
If neither party timely files an appeal with the Appeals Board, the Court Order
becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory
orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
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]
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