Eason, Rodney v. Nucor Steel Memphis, Inc. , 2022 TN WC 47 ( 2022 )

FILED
Jun 09, 2022
01:06 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
RODNEY EASON, ) Docket No. 2021-08-0862
Employee, )
v. )
NUCOR STEEL MEMPHIS, INC., ) State File No. 117615-2020
Employer, )
And )
ARCH INSURANCE CO., ) Judge Deana C. Seymour
Carrier. )
________________________________________________________________________
EXPEDITED HEARING ORDER
The Court held an Expedited Hearing on May 18, 2022. Mr. Eason sought medical
and temporary disability benefits for a back injury. Nucor argued his claim was barred by
his failure to give proper notice and that he did not sustain a work injury. For the reasons
below, the Court holds Mr. Eason is likely to prove at trial that he gave proper notice,
suffered a back injury at work, and is entitled to the requested benefits.
History of Claim
Mr. Eason claimed he injured his back on October 30, 2020, while cutting samples
from steel bars for Nucor. He “felt something” in his back when he picked up the first bar
but did not think much of it. When he tried to pick up the second bar, he felt severe pain in
his back, which brought tears to his eyes. He could not move the second bar.
When Mr. Eason’s co-worker, Rosalind Turner, came to help, she noticed his
distress and called Ron Norman, an emergency response employee. Mr. Norman testified
that Mr. Eason was crying in pain when he arrived and told him that he did not know if he
had twisted his back or had kidney problems. Mr. Norman called the occupational health
nurse, Martha Herron, who told him to bring Mr. Eason to the onsite clinic.
Ms. Herron testified by deposition that when Mr. Eason arrived, he said, “Hey, my
back’s hurting.” He told her that he did not know why but suspected a kidney infection.
1
Since Ms. Herron only handles work injuries, she took Mr. Eason to the Nucor Clinic on
the other side of the office, which provides general care for non-work-related medical
conditions.
There, an on-site doctor noted Mr. Eason’s back pain and suspected a kidney
problem. However, a urinalysis proved negative for infection. Mr. Eason was scheduled to
work again on November 4.
On that day, Mr. Eason reported to Ms. Herron with continued back pain. She noted
“no on the job injury,” took him off work, and sent him to Nucor Clinic. A nurse
practitioner at the clinic recorded worsening lower back pain and ordered a kidney
ultrasound, which was negative.
When Mr. Eason told his supervisor, Jessica Williams, that he could not work
because of his back injury, she contacted Ms. Herron about Nucor’s attendance policy. Ms.
Herron explained that Mr. Eason did not report a back injury and that he needed to come
in.
Ms. Williams also told her supervisor, Stephen Gage, that Mr. Eason thought he
hurt his back at work. 1 Mr. Eason took Ms. Williams to the lab to show her where he was
cutting samples from the steel bars when the back pain struck. She spoke with Mr. Eason’s
co-workers, Ms. Turner, Mr. Norman, and Austin Yelvington. Although they were vague
on details, each knew Mr. Eason experienced pain in his back, which prevented him from
working. He never gave specific details nor did the co-workers have a clear understanding
of what caused Mr. Eason’s sudden severe back pain.
Mr. Gage testified that he first learned of Mr. Eason’s back claim on November 11.
He spoke with Mr. Eason, who did not complain to him of a work injury. Mr. Gage also
spoke with Mr. Eason’s co-workers and with Ms. Herron.
Nucor did not provide Mr. Eason a panel doctor. So, he sought relief from his
primary care physician, Dr. Todd Motley. Dr. Motley diagnosed a left low-back strain that
“apparently occurred while he was at work.” He injected Mr. Eason’s left low back muscle
and advised him to return in two weeks.
Mr. Eason tried but was unable to return to work because of back and foot pain. Ms.
Herron did not recommend returning Mr. Eason to work. She stated “my medical nursing
opinion at this point. TM is still having deficiencies keeping him from tolerating a full
work day from his feet.” 2 Ms. Herron told Mr. Eason to see his primary care physician for
1
Mr. Gates testified that he does not remember speaking with Ms. Williams on November 4.
2
The foot problem Ms. Herron referred to a non-work-related left foot condition, for which he was treated
with complex surgery and physical therapy. Mr. Eason was on family medical leave for the foot injury until
September 23, 2020.
2
a work release.
As instructed, Mr. Eason returned to Dr. Motley with continued back complaints on
November 16. Dr. Motley kept Mr. Eason off work, ordered a lumbar MRI, and referred
Mr. Eason for a neurological consult. He called Ms. Herron, who told Dr. Motley that Mr.
Eason did not have a work injury.
On December 14, Ms. Herron filed a First Report of Work Injury, noting that Nucor
first received notice of a back injury claim on November 4. She described the injury:
“Pulling samples. EE claims that while he was pulling samples, claims he sustained back
pain he later claimed as work related on 11/04/2020. EE sought medical tx. Strain or injury
by pushing or pulling.”
After much delay, the MRI was carried out. Mr. Eason met with neurosurgeon Dr.
Samuel Polk on December 17 to discuss the results, which showed a left-sided paracentral
disc herniation at L4-5 affecting the L5 root. Dr. Polk recommended Mr. Eason continue
off work while they “switch his care to a worker’s compensation coverage, if he chooses.”
In the meantime, “we will move swiftly to see if we can get his pain better controlled.”
Mr. Eason last saw Dr. Polk on January 18, 2021, with limited pain relief from
conservative treatment. He was unable to afford continued treatment because his private
insurance lapsed when Nucor terminated him because he could not physically return to
work.
On August 6, Nucor denied Mr. Eason’s claim, stating “employee originally denied
a work-related injury and the accident was never reported.” Mr. Eason filed a Petition for
Benefit Determination on August 30.
Nucor then gave Mr. Eason a panel of physicians on December 13, from which he
chose neurosurgeon Dr. Fereidoon Parsioon. Dr. Parsioon examined Mr. Eason and
reviewed his medical records, including pre-injury records concerning his prior foot
surgery. He testified by deposition, “[I]t is my opinion with a reasonable degree of medical
probability that his ruptured disc at the L4-5 level on the left is related to his on-the-job
injury of October 2020.” Dr. Parsioon recommended surgery. He confirmed in his
deposition that he continued to keep Mr. Eason off work.
Dr. Parsioon also explained that he considered medical history, credibility, and the
description of the work incident when determining causation. He testified that before the
work injury, Mr. Eason described muscular back pain rather than more severe pain into his
left leg due to compression from a herniated disc. Further, Mr. Eason returned to work
from his foot injury and was moving steel bars when he felt pain that prevented him from
returning to work, which led to his termination.
3
As to credibility, Dr. Parsioon volunteered,
I found the man to be honest. And I guess after 29 years of doing this I have
a pretty good sense of knowing who is, he didn’t ask for any narcotics and
he had an issue in the family that made him really concentrate on kidney
issues from the beginning . . . And the flank pain and left-sided back pain
that he was complaining of in the beginning could have given people the
impression, or him the impression it was coming from the kidneys, which we
know it wasn’t.
Dr. Parsioon stood by his opinions during questions about Mr. Eason’s initial denial
of a work injury and his lack of clarity in describing it.
Findings of Fact and Conclusions of Law
Mr. Eason must present sufficient evidence he is likely to prevail at a hearing on the
merits. Tenn. Code Ann. § 50-6-239(d)(1) (2021); McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The threshold issue is whether Mr. Eason gave timely notice of his injuries.
Tennessee Code Annotated section 50-6-201(a)(1) provides that an injured employee must
give written notice of an injury within fifteen days unless it can be shown that the employer
had actual knowledge of the accident or that “reasonable excuse for failure to give the
notice is made to the satisfaction of the tribunal.” In addition, section 50-6-201(a)(3) states
that “[n]o defect or inaccuracy in the notice shall be a bar to compensation, unless the
employer can show, to the satisfaction of the workers’ compensation judge before which
the matter is pending, that the employer was prejudiced by the failure to give the proper
notice, and then only to the extent of the prejudice.”
When the employer raises lack of notice as a defense, the burden is on the employee
to show either the employer had actual notice, that he provided notice, or that his failure to
give notice was reasonable under the circumstances. Hosford v. Red Rover Preschool, 2014
TN Wrk. Comp. App. Bd. LEXIS 1, at *15 (Oct. 2, 2014). Our Appeals Board explained
the notice requirement “exists so that an employer will have an opportunity to make a
timely investigation of the facts while still readily accessible, and to enable the employer
to provide timely and proper treatment for an injured employee.” Id. Guided by this
authority, the Court must determine whether Mr. Eason met his burden of proof.
The Court finds Nucor had actual notice of Mr. Eason’s back claim as early as
November 4, 2020, when he told his supervisor, Ms. Williams, that he could not work
because of his back injury. Ms. Williams then notified Ms. Herron and Mr. Gage, and an
investigation ensued.
4
Rather than provide Mr. Eason a panel of physicians, Ms. Herron told him to see his
primary care physician, Dr. Motley. After that appointment, Dr. Motley advised Ms.
Herron that he had taken Mr. Eason off work, ordered a lumbar MRI, and referred Mr.
Eason for a neurological consult for his claimed back injury.
Although Mr. Eason was initially unsure what caused the pain in his back on
October 30, 2020, he discussed his claim with his supervisor, sought treatment through
Nucor’s occupational nurse and its medical clinic, and kept Nucor advised of his treatment.
Further, Nucor presented no evidence of any actual prejudice to defend this claim.
Prejudice may be found if the employer is denied the opportunity to make an investigation
while the facts are accessible or to provide timely and proper treatment for the injured
employee. Masters v. Indus. Garments Mfg. Co., 595 S.W.2d 811, 815 (Tenn. 1980).
Although Nucor generally claimed Mr. Eason’s failure to give notice of a specific work
injury barred his claim, the lack of an initial description and diagnosis for his sudden back
pain while performing his job did not prejudice Nucor’s ability to investigate his claim.
See also Hannah v. Senior Citizens Home Assistance Serv., Inc., 2022 TN Wrk. Comp.
App. Bd. LEXIS 15, at *16-17 (Mar. 28, 2022) (Trial court correctly found employer
showed no actual prejudice as a result of delayed notice, where the employer offered no
evidence of the asserted prejudice.)
Therefore, the Court holds that Mr. Eason is likely to prevail at a hearing on the
merits on the issue of notice. This holding, however, does not end the inquiry.
Next, to prove a compensable injury, Mr. Eason must show that his alleged injury
arose primarily out of and in the course and scope of his employment. To do so, he must
prove a work-related incident identifiable by time and place of occurrence. Tenn. Code
Ann. § 50-6-102(14)(A). Further, he must show, “to a reasonable degree of medical
certainty that [the incident] contributed more than fifty percent (50%) in causing the . . .
disablement or need for medical treatment, considering all causes.” A “reasonable degree
of medical certainty” means that, in the treating physician’s opinion, it is more likely than
not considering all causes as opposed to speculation or possibility. Tenn. Code Ann. § 50-
6-102(14)(C)-(D).
Considering the Workers’ Compensation Law and the evidence presented, the Court
finds Mr. Eason’s testimony credible, which was supported by his supervisor, co-workers,
medical records, and Dr. Parsioon’s deposition. The evidence proved he experienced
severe back pain at work for Nucor on October 30, 2020.
The Court discredits Nucor’s assertion that Mr. Eason was not credible, based on
discrepancies in his testimony as to the specific weight of the steel bars, his initial
uncertainty concerning the cause of the back pain, and his effort to obtain medical
treatment. Mr. Eason testified he was initially unsure whether the severe back pain he
experienced came from his kidney or from twisting wrong while working with the steel
5
bars. He was also consistent in his testimony that his co-workers helped him to Nucor’s
occupational nurse and its onsite clinic. Mr. Eason was consistent in his testimony that
when Nucor’s clinic ruled out a kidney problem and denied further treatment, he had to
resort to his primary care physician for help. Further, he has been unable to work since this
injury. Thus, the Court holds he is likely to show a specific incident, identifiable by time
and place, at trial.
The question then is whether Mr. Eason is likely to prove that the work incident
caused his disc herniation and need for treatment. The Court finds he did.
Neurosurgeon Dr. Parsioon provided the only medical opinion on causation. 3 He
testified Mr. Eason’s disc herniation was primarily caused by his October 2020 work injury
and that the recommended surgery was medically necessary for the treatment of his work
injury. As the panel-selected physician, Dr. Parsioon’s causation opinion is afforded a
rebuttable presumption of correctness. Tenn. Code Ann. § 50-6-102(14)(E).
Rather than introducing a competing medical opinion to attempt to rebut this
presumption, Nucor relied on its cross-examination of Dr. Parsioon concerning the alleged
discrepancies in information on which he relied to formulate his opinion. Dr. Parsioon
supported his opinion, noting that Mr. Eason was credible and honest.
In summary, the Court finds Nucor introduced no compelling evidence to support
exclusion of Dr. Parsioon’s opinions or sufficient expert medical testimony to rebut the
presumption of correctness afforded his causation opinion. “Parties and their lawyers
cannot rely solely on their own medical interpretations of the evidence to successfully
support their arguments.” Lurz v. Int’l Paper Co., 2018 TN Wrk. Comp. App. Bd. LEXIS
8, at *16 (Feb. 14, 2018). Thus, Mr. Eason is likely to prevail at a hearing on the merits
regarding his entitlement to medical benefits.
The Court next addresses Mr. Eason’s claim for temporary disability benefits. To
qualify for temporary total disability benefits, Mr. Eason must show: (1) he was disabled
from working due to a work injury; (2) a causal connection exists between the injury and
his inability to work; and (3) the duration of the period of disability. Simpson v Satterfield,
564 S.W.2d 953, 955 (Tenn. 1978).
In this case, all of Mr. Eason’s physicians and Nucor’s occupational health nurse
restricted him from work after November 4, 2020. In his May 11, 2022 deposition, Dr.
Parsioon testified that he continued to keep Mr. Eason off work due to his work injury.
Thus. the Court concludes that Mr. Eason is entitled to temporary total disability benefits
from November 5, 2020, to May 11, 2022 (79 weeks at the stipulated compensation rate of
$674.86, yielding $53,313.94).
3
Dr. Polk was asked for his causation opinion. Since Mr. Eason discontinued treatment with him because
he had no insurance coverage, Dr. Polk was unable to give an opinion.
6
Finally, counsel for Mr. Eason requests a twenty-percent attorney fee paid from the
temporary total disability award, or $10,662.79. The Court shall consider this request upon
counsel’s application for approval of the proposed fee per Tennessee Code Annotated
section 50-6-226(a)(2)(C).
IT IS ORDERED as follows:
1. Nucor shall provide Mr. Eason with medical treatment for his work injuries under
Tennessee Code Annotated section 50-6-204. Dr. Fereidoon Parsioon is the
authorized treating physician.
2. Nucor shall pay Mr. Eason temporary disability benefits of $53,313.94, to be paid
in a lump sum for November 5, 2020, to May 11, 2022.
3. Counsel for Mr. Eason may submit application for approval of attorney fees per
Tennessee Code Annotated section 50-6-226(a)(2)(C).
4. 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 might result in a penalty assessment
for non-compliance. For questions regarding compliance, please contact the
Workers’ Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
5. This matter is set for a Status Hearing on August 8, 2022, at 8:30 a.m. central
time. You must call 615-532-9550 or toll-free at 866-943-0014 to participate in the
Hearing. Failure to call might result in a determination of the issues without your
participation.
ENTERED June 9, 2022.
________________________________________
Judge Deana C. Seymour
Court of Workers’ Compensation Claims
7
APPENDIX
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing, along with Rule 72 Declaration of Rodney Eason
4. Employer’s Motion to Allow Late Filing of the Transcript of the Evidentiary
Deposition of Dr. Fereidoon Parsioon or Alternative Motion for Brief Continuance
of Expedited Hearing Set for May 18, 2022
5. Employee’s Response to Employer’s Motion for Brief Continuance of Expedited
Hearing Set for May 18, 2022
6. Employee’s Motion to Amend Petition for Benefit Determination
7. Order on Employer’s Motions
8. Employer’s Statement Detailing Why Relief Should Not be Granted
9. Employee’s Expedited Hearing Brief
10. Order Granting Employee’s Motion to Amend Petition for Benefit Determination
Exhibits
1. Joint Submission of Medical Records for Use at Trial with Index and Table of
Contents
2. Deposition Transcript of Martha Herron, R.N.
3. Deposition Transcript of Dr. Fereidoon Parsioon
4. First Report of Work Injury
5. Wage Statement
6. C42 Choice of Physician form
7. Deposition Transcript of Rodney Eason (for ID only)
8. Rosalind Turner’s sketch of lab
8
CERTIFICATE OF SERVICE
I certify that a copy was sent as indicated on June 9, 2022.
Name Certified U.S. Via Service sent to:
Mail Mail Email
Monica Rejaei, X mrejaei@nstlaw.com
Employee’s Attorney
S. Newton Anderson, X nanderson@spicerfirm.com
Employer’s Attorney
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
9
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