Szego, Scott v. Teffeteller Construction & Landscaping, Ashlet McNish, & The Estate of Kristopher Teffeteller , 2022 TN WC 3 ( 2022 )

FILED
Jan 19, 2022
08:57 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
SCOTT SZEGO, ) Docket No. 2019-01-0488
Employee, )
v. )
) State File No. 48608-2019
TEFFETELLER CONSTRUCTION & )
LANDSCAPING, ASHLEY MCNISH, )
& THE ESTATE OF KRISTOPHER ) Judge Thomas Wyatt
TEFFETELLER, )
Uninsured Employer. )
COMPENSATION ORDER AWARDING BENEFITS
At a Compensation Hearing, Scott Szego sought temporary disability, permanent
disability, and medical benefits for a May 21, 2019 work injury. He also sought to recover
under the Uninsured Employers Fund. For the reasons below, the Court holds that Mr.
Szego is entitled to recover the benefits he seeks. He also qualifies to apply to the
Uninsured Employers Fund for consideration of the discretionary payment of certain
statutory benefits.
History of Claim
On May 21, 2019, Mr. Szego, a Tennessee resident, sustained serious injuries while
working for Teffeteller Construction at a jobsite in Chattanooga. Within sixty days of the
injury, he filed a Petition for Benefit Determination and a Request for Investigation seeking
the Bureau’s inquiry into why Teffeteller Construction had not paid benefits for his
injuries.
Kristopher Teffeteller operated Teffeteller Construction as a sole proprietorship.
After Mr. Teffeteller died during the pendency of the case, his girlfriend, Ashley McNish,
participated in several Status Hearings on behalf of Teffeteller Construction. Mr. Szego
added Ms. McNish and the Estate of Kristopher Teffeteller as defendants.
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As background, Mr. Szego was forty-two years old on the date of injury and attained
a GED. He had worked for Teffeteller Construction for two months at a rate of $10 per
hour before the injury occurred. He averaged working forty-five hours per week during
his employment.
Teffeteller Construction had Mr. Szego tearing out a roof on the date of injury. He
became overheated and fell from a height of approximately fifteen feet. Records show that
an ambulance crew found Mr. Teffeteller unresponsive. Witnesses told emergency
personnel that Mr. Szego was assigned to work on the roof and when they heard a thud,
found him lying unconscious on the ground. The ambulance transported Mr. Szego to a
trauma center.
Mr. Szego underwent an emergency craniotomy to relieve pressure from brain
bleeding. Radiological testing also revealed he suffered compression fractures of three
vertebrae between the T2-3 and T4-5 levels of the thoracic spine. He remained hospitalized
for five days. Mr. Szego testified that he also broke his collar bone, cracked several ribs,
and injured his shoulder in the fall.
The Bureau’s investigator confirmed Mr. Szego’s Tennessee residence through a
food stamps eligibility letter from the Hamilton County Department of Human Services.
She also confirmed that Mr. Szego filed the Request for Investigation within sixty days of
the injury.
The investigator noted that Mr. Szego reported working for Teffeteller Construction
for a couple of months before the injury occurred. His rate of pay was $10 per hour, and
taxes were not withheld. She located a Teffeteller employee named Larry Henderson, who
confirmed Mr. Szego’s history of performing roofing duties for Teffeteller Construction.
The investigator spoke to Mr. Teffeteller, who admitted that his construction and
landscaping business did not have workers’ compensation insurance on the date of injury.
Mr. Teffeteller claimed that Mr. Szego had worked on the jobsite four days “without
permission,” and he stated he fired Mr. Szego the day before the injury occurred.
Finally, the investigator documented Mr. Teffeteller’s failure to cooperate in
providing details about the nature of Mr. Szego’s employment. However, she concluded
from Mr. Szego’s statements that he was an employee, and not an independent contractor,
because Teffeteller Construction: had the right to terminate him; transported him and co-
workers to their jobsites; provided tools, and controlled the work by setting hours,
obtaining co-workers, and deciding which employees worked at which jobsite. Mr. Szego
testified at the hearing consistently with the specifics in the investigator’s report.
After his release from the hospital, neurosurgeon Dr. Joseph Miller and his
physician’s assistant followed Mr. Szego for his head and spinal injuries. Dr. Miller and
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his staff prescribed medication and ordered follow-up radiological testing. On June 6,
2019, Dr. Miller took Mr. Szego completely off work. On July 11, the physician’s assistant
authorized him to return to work with a twenty-pound lifting restriction. He raised the
lifting restriction to thirty pounds on August 22. Mr. Szego received no treatment for his
injuries after August 22, 2019.
More than two years later, Mr. Szego saw Dr. Jerry Smith for an independent
medical examination. He noted that Mr. Szego reported memory loss, headaches, difficulty
concentrating, and stuttering after a May 21, 2019 work injury. Dr. Smith diagnosed Mr.
Szego with a traumatic brain injury resulting in alteration in mental status and stuttering.
He also diagnosed thoracic compression fractures. He assigned a 21% permanent
impairment. Due to his injuries, Dr. Smith permanently restricted Mr. Szego from working
from ladders, at heights, and around loud noises. He also imposed a thirty-pound lifting
restriction.
Dr. Smith completed Final Medical and Standard Medical Reports, in which he
wrote that Mr. Szego’s head and thoracic injuries, and the treatment for those conditions,
arose primarily out of and in the course and scope of employment. He set the maximum
medical improvement date on the examination date and concluded that Mr. Szego was
totally disabled from working from the injury date until the examination date.
Mr. Szego introduced the following billing records for treatment of his injuries:
$98,711.84 Erlanger Medical Center (May 21-26, 2019)
$ 2,783.00 Erlanger Medical Center (July 2019 MRI)
$ 8,283.76 Erlanger Medical Center (December 2019 radiological testing).
$ 626.00 University Surgical Associates (craniotomy)
$ 1,018.56 TIIC (radiologist services)
Total $111,423.16
Only Mr. Szego participated at the hearing. He testified that he has not worked
since the injury date because of severe headaches, back pain, deconditioning, and fear that
he will hit his head and cause further brain damage. He stated he suffers memory loss and
lack of mental concentration due to his brain injury. He stuttered when he answered
questions during the hearing.
Mr. Szego did not introduce evidence showing Ms. McNish’s relationship, if any,
to Teffeteller Construction.
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Findings of Fact and Conclusions of Law
Mr. Szego bears the burden “of proving each and every element of the claim by a
preponderance of the evidence.” Tenn. Code Ann. § 50-6-239(c)(6) (2021). He must meet
this burden to show that his injuries, treatment, and impairment “arose primarily out of and
in the course and scope of employment.” Tenn. Code Ann.§ 50-6-102(14).
The Court holds Mr. Szego proved that he fell from a roof while working for
Teffeteller Construction on May 21, 2019. He was transported by ambulance to a trauma
center, where he underwent emergent surgery for a traumatic brain injury. Radiological
testing revealed that Mr. Szego also suffered compression fractures to three thoracic
vertebrae. Dr. Smith determined that Mr. Szego’s fall at work primarily caused his head
and thoracic spinal injuries. Thus, the Court holds that Mr. Szego met his burden of
proving that his head and thoracic injuries arose primarily out of and in the course and
scope of employment.
Benefits
Mr. Szego argued for recovery of temporary disability benefits from the injury date
until October 12, 2021, the date Dr. Smith placed him at maximum medical improvement.
He relied on Dr. Smith’s opinion that his work injuries totally disabled him from the injury
date until October 12, 2021.
The Court does not accept this position, giving little weight to Dr. Smith’s
coincidental placement of the date of maximum medical improvement on the date of his
examination. Regarding the issue of maximum medical improvement, the Court gives
greater weight to the providers who treated his injuries.
Unquestionably, Mr. Szego was totally disabled while hospitalized between May 21
and 26, 2019. Because he was recovering from brain surgery and Dr. Miller took him
completely off work on the first post-hospitalization visit on June 6, the Court holds that
Mr. Szego was likewise totally disabled from May 27 until June 6. Mr. Szego remained
completely off work until August 22, 2019, when he saw the physician’s assistant, who
released him to return to work with the thirty-pound lifting restriction that Dr. Smith
testified was permanent.
Based on the above facts, the Court holds that Mr. Szego attained maximum medical
improvement on August 22, 2019, and awards him temporary disability benefits between
May 21 and August 22, a period of thirteen weeks and three days. See Tenn. Code Ann. §
50-6-207(1)(E) (the date of maximum medical improvement is conclusively presumed to
be the date the treating physician ends all treatment).
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Mr. Szego worked for Teffeteller Construction at the rate of $10 per hour, averaging
forty-five hours per week. Thus, his average weekly wage is $450, and his compensation
rate is $300 per week. See Tenn. Code Ann. § 50-6-207(1)(A). On the above findings, the
Court awards Mr. Szego $4,035.00 in temporary disability benefits.
The Court next addresses Mr. Szego’s claim to permanent disability benefits.
Tennessee Code Annotated section 50-6-207(2)(A) sets the original award of permanent
partial disability benefits at the employee’s compensation rate multiplied by 450 weeks
and the applicable impairment rating. Here, the impairment rating is 21%, and his weekly
compensation rate is $300. Using the statutory formula, the Court awards Mr. Szego an
original award of permanent disability benefits based on 94.5 weeks of benefits, or
$28,350.00.
Tennessee Code Annotated section 50-6-207(2)(B) provides for a second tier of
permanent disability benefits, called a resulting award, for employees who have not made
a successful return to work on the expiration date of the initial compensation period. Here,
Mr. Szego’s initial compensation period expired on June 14, 2021. On that date, he had
been unable to locate employment because of residual pain from his work injuries and
permanent restrictions. In view of that fact, the Court awards him a resulting award of
permanent partial disability benefits.
Section 207(2)(B) provides that a resulting award is calculated by the application of
up to four multipliers against the original award, depending on whether the employee
shows sufficient facts to prove each individual multiplier. The preponderance of the
evidence shows that Mr. Szego qualifies for a 1.35 multiplier for having not made a
successful return to work, and a 1.2 multiplier for attaining the age of 40 before the initial
compensation period expired. Upon application of the multipliers, the Court awards Mr.
Szego a resulting award of permanent partial disability benefits totaling $17,577.00.
Regarding medical benefits, Tennessee Code Annotated section 50-6-204 requires
an employer to pay all reasonable and necessary medical treatment of an employee’s work
injury. Here, Mr. Szego incurred at least $111,423.16 for treatment of his injuries. He
incurred ninety percent of these charges for the emergent radiological testing, craniotomy,
and hospitalization necessitated by his fall at work. Further, Dr. Smith testified that the
treatment Mr. Szego received for his injuries, including the craniotomy, was reasonable
and necessary. For the above reasons, the Court requires Teffeteller Construction to pay
the $111,423.16 in medical charges introduced into evidence. Mr. Szego is entitled to see
neurosurgeon Dr. Joseph Miller for ongoing treatment of his injuries.
Uninsured Employers Fund
Finally, because Teffeteller Construction did not have insurance, the Court
considers whether Mr. Szego is eligible to apply for benefits from the Bureau’s Uninsured
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Employers Fund. Under Tennessee Code Annotated section 50-6-802(e), the Bureau has
the discretion to pay limited benefits to Mr. Szego if he proves the following:
1. He worked for an employer who did not have workers’ compensation
insurance;
2. He suffered an injury arising primarily in the course and scope of
employment on or after July 1, 2015;
3. He was a Tennessee resident on the date he was injured; and
4. He provided notice to the Bureau of the injury and of the failure of the
employer to secure payment of compensation within a reasonable period, but
no longer than sixty days after the date of his injury.
The Court finds that Mr. Szego worked for an employer that did not have workers’
compensation insurance, and he proved by a preponderance of the evidence that he suffered
an injury arising primarily from his employment on May 21, 2019. He was a Tennessee
resident on the date he was injured, and he gave notice to the Bureau of his injury and
Teffeteller Construction’s lack of insurance within sixty days. Therefore, Mr. Szego
satisfied all the requirements of section 803(e). He may complete the attached form for
consideration of a discretionary payment through the Uninsured Employers Fund.
Claims Against Ashley McNish and the Estate of Kristopher Teffeteller
The Court finds that Mr. Szego did not introduce any evidence that proved Ashley
McNish’s liability for the workers’ compensation obligations of Teffeteller Construction
or Kristopher Teffeteller. For this reason, the Court dismisses this claim against her with
prejudice to its refiling. Because Mr. Teffeteller operated Teffeteller Construction as a sole
proprietorship, his estate is liable for the benefits awarded Mr. Szego by this order.
IT IS ORDERED:
1. Teffeteller Construction and/or the Estate of Kristopher Teffeteller shall pay
Mr. Szego $4,035.00 in temporary total disability benefits.
2. Teffeteller Construction and/or the Estate of Kristopher Teffeteller shall pay
Mr. Szego $28,350.00 as an original award of permanent partial disability benefits.
3. Teffeteller Construction and/or the Estate of Kristopher Teffeteller shall pay
Mr. Szego $17,577.00 as a resulting award of permanent partial disability benefits.
4. Teffeteller Construction and/or the Estate of Kristopher Teffeteller shall pay
the documented charges to the named providers, totaling $111,423.16, incurred by
Mr. Szego for treatment of his work injuries.
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5. Teffeteller Construction and/or the Estate of Kristopher Teffeteller shall be
responsible for Dr. Joseph Miller’s charges for providing reasonable and necessary
ongoing treatment of his work injuries.
6. Teffeteller Construction and/or the Estate of Kristopher Teffeteller shall pay
the $150 filing fee to the Court Clerk within five business days after this order
becomes final. They shall also file an SD-2 form memorializing the conclusion of
this case.
7. Mr. Szego is eligible to request benefits from the Uninsured Employers Fund
at the Administrator’s discretion as provided in Tennessee Code Annotated section
50-6-802(e). To do so, he must complete and submit the enclosed form.
8. The claim against Ashley McNish is dismissed with prejudice to its refiling.
9. The McMahon firm is entitled to an attorney’s fee of twenty percent of the
recovery, and for recovery of its reasonable expenses, in successfully presenting this
case for trial. It shall file a petition in support of any fee it seeks in excess of
$10,000.
ENTERED January 19, 2022.
_____________________________________
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
Appendix
Technical Record:
1. Petition for Benefit Determination, including Request for Investigation
2. Order granting leave to add parties
3. Scheduling Order
4. Initial Dispute Certification Notice
5. Post-Discovery Dispute Certification Notice
6. Plaintiff’s Proposed Witness & Exhibit Lists
Exhibits:
1. Expedited Request for Investigation Report and attached documents
2. Hamilton County EMS records
3. Erlanger Medical Center and Physician Group records
4. Parkridge Medical Center records
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5. Billing records
6. Report of Dr. Jerry Smith, including attached medical reports
7. Erlanger Medical Center bill (verified by Mr. Szego)
8. Temporary total disability calculation
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on January 19, 2021.
Name Certified Email Service sent to:
Mail
Brent Burks, X brentburks@mcmahanlawfirm.com
Employee’s Attorney cc: laura@mcmahanlawfirm.com
Kris Teffeteller X X 435 Montclair Drive
Ashley McNish Rossville, GA 30741
d/b/a Teffeteller ashleyteff35@gmail.com
Construction &
Landscaping,
Employer
Michael Jones, X msj@lutheranderson.com
Administrator ad Litem
for Estate of Kristopher
Teffeteller
LaShawn Pender, X Lashawn.pender@tn.gov
UEF Program
______________________________________
PENNY SHRUM, Court Clerk
WC.CourtClerk@tn.gov
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