Tedford, Daniel v. Energy Savers, LLC , 2021 TN WC 236 ( 2021 )

FILED
Oct 19, 2021
02:12 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
DANIEL TEDFORD, ) Docket No.: 2020-02-0446
Employee, )
v. )
ENERGY SAVERS, LLC, ) State File No.: 4141-2020
Employer, )
And )
AMERICAN ZURICH ) Judge Brian K. Addington
INSURANCE, )
Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS
Daniel Tedford alleged he suffered serious injuries in two separate events. The first
occurred when he partially fell through a ceiling; months later, a second injury occurred
while he was operating a foam spray gun. Energy Savers initially provided medical and
temporary disability benefits, but it later denied the claim, asserting that his injuries had
resolved, or his statute of limitations had run. Mr. Tedford filed a request for expedited
hearing, and Energy Savers defended its denial. After considering the evidence presented
at the October 12, 2021 hearing, the Court holds that Mr. Tedford is not likely to succeed
at a hearing on the merits in proving his entitlement to benefits.
Claim History
Sometime in October 2019, while performing his job as a lead foam sprayer, Mr.
Tedford partially fell through a ceiling. He caught himself on the rafters and did not fall
to the floor below. He felt no pain from the fall and notified his employer of the ceiling
damage.
Weeks later, Mr. Tedford began feeling pain in his right arm, which he attributed to
overwork. He continued working for several months and alleviated the pain with over-the-
counter medications.
Mr. Tedford claimed that his arm pain changed on January 3, 2020, when he noticed
that his pain intensified as he sprayed overhead. The pain decreased over the weekend but
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returned on January 6 while spraying insulation at a jobsite. He went to the emergency
room, complaining of neck pain that started at work on January 3. The providers did not
note any pain in his arms and diagnosed a headache and arthritis.
Mr. Tedford disagreed with that diagnosis and went to a walk-in clinic the next day.
The provider there found that he had neck tenderness, assessed a muscle spasm and/or
sprain, and recommended that he share heavy work with younger co-workers.
After this diagnosis and recommendation, Mr. Tedford called his boss. During their
discussion, he came to believe that Energy Savers had no light-duty work for him and
would no longer employ him. On January 23, he filed a Petition for Benefit Determination.
After filing the petition, Energy Savers provided a panel of physicians, and Mr.
Tedford came under the care of providers at Ballad Occupational Medicine on February 1.
There, he told a nurse practitioner about numbness and pain in his shoulder and neck and
stated that he injured his neck spraying overhead. He discussed his treatment at the
emergency room and walk-in clinic, and that he had been treated by a chiropractor.1 The
assessment was a right-shoulder strain from repetitive overhead spraying. At this point,
Energy Savers authorized Mr. Tedford to see Dr. Janice Schweitzer.
Dr. Schweitzer took his history and examined him on February 3. She recorded that
Mr. Tedford denied any symptoms before the spraying incident. He did not tell her about
his fall through the ceiling. He complained of a pinch in his neck, arm numbness, and
clavicle pain. Dr. Schweitzer assessed a shoulder/arm strain, ligament sprain in the cervical
spine, and overexertion from repetitive movements related to his work. She restricted him
from use of his shoulders or overhead work and placed a five-pound lifting, pushing, and
pulling restriction.
Mr. Tedford could not find work with those restrictions, so he returned on February
6 to ask Dr. Schweitzer to revise them, so that he could work at Lowe’s. He told her he
continued to have neck pain but needed to work, so she decreased his restrictions to ten
pounds based on his assertions that he could tolerate this activity. Dr. Schweitzer also
ordered diagnostic testing.
Mr. Tedford returned to Dr. Schweitzer in March after the testing. Dr. Schweitzer
wrote that the MRI results were not remarkable but added cervical displacement to her
assessment. She requested a shoulder MRI, which suggested mild tendon fraying and a
probable miniscule tear. As a result of the testing, Energy Savers offered Mr. Tedford a
panel of physicians for his neck and shoulder.2 He chose Dr. Jodi Helms for his neck and
Dr. Thomas Gill for his shoulder.
He saw Dr. Helms first on April 9, reporting that he experienced pain radiating down
into his right middle finger before January 3 that worsened after the incident. He
1
The parties did not supply the chiropractor’s notes.
2
Energy Savers also paid temporary disability benefits for a while.
2
complained of shoulder and neck pain during the examination. Dr. Helms did not record
that he fell at work in October 2019. Dr. Helms reviewed the MRI results and determined
his cervical MRI only revealed a minor degenerative bulge. He recommended an
evaluation of Mr. Tedford’s shoulder but placed him at maximum medical improvement
with no impairment for his neck.
He then saw Dr. Gill on April 21. Based on Mr. Tedford’s history, Dr. Gill
determined that he had overused his shoulder. He diagnosed tendonitis and a strain and
continued the ten-pound restrictions that Dr. Schweitzer recommended. He injected Mr.
Tedford’s shoulder and ordered physical therapy.
Dr. Gill saw him over the following months but did not find anything significant
with his shoulder. He responded to the insurance carrier about causation by checking a
box that Mr. Tedford’s work was more than 50% the cause of his right bicep tendonitis and
right rotator cuff strain. Dr. Gill also stated in his notes that Mr. Tedford needed to see a
physician for his neck pain and a second opinion for his shoulder. So, Energy Savers gave
him a second opinion with Dr. Richard Duncan for his neck and Dr. Larry Waldrop for his
shoulder.
Dr. Duncan examined Mr. Tedford in August and reviewed the MRI. He could not
identify anything that would cause Mr. Tedford’s neck pain. He released him at maximum
medical improvement without restrictions or impairment that same day.
Mr. Tedford next saw Dr. Waldrop in October. Dr. Waldrop noted that he was
reaching at work and felt a pop. Dr. Waldrop suspected a labrum tear and recommended
surgery, which was set for late October.
During this whole process, Mr. Tedford said he felt like providers were not listening
to him or treating his complaints correctly. However, Mr. Tedford testified he violated his
restrictions at Lowe’s and quit his job because he could not continue to work there without
violating his restrictions, but the records do not document him telling Dr. Schweitzer that
information. Further, Dr. Schweitzer found him to be “a somewhat vague historian.” He
also failed to tell Dr. Gill about his 2019 fall at work. Yet, he wanted everyone to know
that not only his right shoulder and neck hurt but also his left shoulder from the fall. He
maintained he did not receive sufficient treatment because every provider was focused on
his right arm. He explained that telling everyone about the October 2019 fall and them
documenting it would help clear the confusion, and he believed then he would get the
treatment he needs.
So, the surgery was canceled, and a return appointment was set with Dr. Waldrop.
Dr. Waldrop noted the fall through the ceiling and Mr. Tedford’s left-shoulder pain. Based
on their conversation and his examination, Dr. Waldrop wrote that Mr. Tedford had no
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shoulder pain before the January 2020 injury and that he suffered bilateral shoulder pain
since that date.3 He recommended surgery, which was scheduled for December.
Energy Savers delayed surgery to obtain a record review by Dr. Christopher Shaver.
Dr. Shaver reviewed all records except those for chiropractic treatment and found no clear
evidence of a right labral tear. He also concluded that any tear that did exist was caused
by the October 2019 fall and not primarily related to the spraying incident in January 2020.
He dismissed the idea that Mr. Tedford’s left-shoulder problems were related to his work
because Mr. Tedford did not mention them for over ten months.
Based on Dr. Shaver’s opinions, Energy Savers denied the claim. Specifically, it
concluded that Mr. Tedford’s claim, including his need for treatment, related to the October
2019 incident and, for that reason, the statute of limitations expired before Mr. Tedford
filed his petition. After the denial, Mr. Tedford filed a new petition on December 28, 2020,
again alleging the January injury dates.
He also started treating on his own for pain management with Dr. John Testerman
after the denial. Dr. Testerman provided an opinion that Mr. Tedford fell through a roof
spraying insulation, but he listed the dates of injury as January 3 and 6, 2020. He stated,
to a reasonable degree of medical certainty, that Mr. Tedford’s shoulder injury and cervical
problems are the result of an on-the-job injury.
During the hearing, Mr. Tedford requested payment for past medical expenses and
a new physician panel. He also requested temporary benefits for various periods, but he
did not provide the exact dates that he was off work. He also did not state whether he
worked with restrictions or the exact amounts he earned while working on restrictions.
Energy Savers requested that Mr. Tedford’s claim be denied for expiration of the
statute of limitations. It additionally argued that any injuries caused by the January 2020
incidents had resolved.
Findings of Fact and Conclusions of Law
At this Expedited Hearing, Mr. Tedford must show he would likely prevail at a
hearing on the merits regarding his requests for medical and temporary disability benefits.
Tenn. Code Ann. § 50-6-239(d)(1) (2020).
To be eligible for medical benefits, Mr. Tedford must prove that he suffered an
injury that primarily arose out of and in the course and scope of his employment and that
his need for medical treatment is related to that injury. Tenn. Code Ann. § 50-6-102(14).
To be eligible for temporary disability benefits, he must prove that his work injury caused
him to miss work or earn less than his average weekly wage. Tenn. Code Ann. § 50-6-
3
Mr. Tedford testified, however, that he had experienced pain before the January incidents.
4
207(1)-(2). He must also show that he filed his claim within the one-year statute of
limitations. See Tenn. Code. Ann. § 50-6-203(b).
Considering these requirements, this is a complex case involving an alleged acute
incident in October 2019 and a repetitive incident culminating in pain while spraying
overhead in January 2020. Except in the most obvious, simple and routine cases, the
injured worker must establish by expert medical evidence the causal relationship between
the claimed injury and the employment activity. Orman v. Williams Sonoma, Inc., 803
S.W.2d 672, 676 (Tenn. 1991). So, the Court looks to the expert medical evidence to
determine if Mr. Tedford proved the causal relationship between his job and his injury and
the dates the injuries occurred. The Court finds he did not prove this.
Rule 703 of the Tennessee Rules of Evidence directs trial courts to “disallow
[expert] testimony in the form of an opinion or inference if the underlying facts or data
indicate lack of trustworthiness.” Although no doctor testified, the records presented
contained several inconsistent facts, statements, and opinions. No physician had an
accurate history of Mr. Tedford’s injuries concerning what happened or when. Further, no
doctor seemed to consider or even know that Mr. Tedford violated his restrictions while
working for Lowe’s. Because of the many inaccuracies in the factual record recorded by
the physicians, the Court gives little weight to their opinions. See generally Jones v. CVS
Pharm., Inc., No. E2013-02451-SC-R3-WC, 2014 Tenn. LEXIS 926, at *10 (Tenn.
Workers’ Comp. Panel Nov. 20, 2014).
Mr. Tedford’s testimony did not help his case. The Court finds he was a poor
historian. He often could not remember dates or exact places, and he often generalized.
He conflated facts with his beliefs and opinions, which have changed over time. He also
could not understand why providers did not record the history of his fall when he believed
he repeatedly told them, but even Dr. Schweitzer found him to be a vague historian.
Regardless of his testimony, the Court observed Mr. Tedford and noticed he
appeared to be in pain. The Court also commends Mr. Tedford for seeking and finding
work while in pain. However, the Court at this time cannot hold that he is likely to succeed
in proving entitlement to medical and temporary disability benefits at a hearing on the
merits because he has not presented an accurate history to his providers so they can give
correct causation opinions. Further, Mr. Tedford’s inability to prove the date of his injury
precludes the Court’s ability to determine whether he filed a petition within the statute of
limitations.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Tedford’s request for temporary disability and medical benefits is denied at
this time.
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2. This case is set for a Status Hearing on December 3, 2021, at 10:00 a.m. Eastern
Time. You must dial 855-543-5044 to participate. Failure to call may result in
a determination of the issues without your participation.
ENTERED October 19, 2021.
________________________________
Judge Brian K. Addington
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Affidavit
2. Wage Statement
3. Physician Panel
4. Notice of Denial
5. Designated Medical Record with Table of Contents
6. Dr. Shaver’s records
7. First Report of Injury
8. Photo
9. Email
10. Text message
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Notice of filing of medical records
5. Agreed order to continue Expedited Hearing
6. Employer’s Expedited Hearing Memorandum
7. Pre-Hearing Brief
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CERTIFICATE OF SERVICE
I certify that a correct copy of this Order was sent to the recipients below as indicated on
October 19, 2021.
Name Certified Fax Email Service sent to:
Mail
Josh Hoeppner, X josh@hoeppnerlaw.com
Employee’s Attorney
Chris Brown, X chris.brown@leitnerfirm.com
Employer’s Attorney
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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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