Hamon, Brandon v. Dickens Turf And Landscape Supply , 2021 TN WC 198 ( 2021 )

FILED
Jul 07, 2021
01:41 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
BRANDON HAMON, ) Docket Number: 2021-03-0377
Employee, )
v. )
DICKENS TURF AND LANDSCAPE )
SUPPLY, ) State File No.: 105881-2019
Employer, )
And )
UNITED FIRE INSURANCE )
COMPANY, ) Judge Brian K. Addington
Carrier. )
EXPEDITED HEARING ORDER
This case came before the Court for an Expedited Hearing on July 1, 2021, upon
Mr. Hamon’s request for attorney’s fees. The issue is whether Mr. Hamon is entitled to
attorney’s fees at this interlocutory stage of litigation. The Court holds that Mr. Hamon is
not entitled to attorney’s fees at this time.
History of Claim
Mr. Hamon injured his right shoulder on October 23, 2019, lifting a tire to place on
a lawnmower. He initially treated at the emergency room and later chose Dr. McElligott
from a panel on November 1. Dr. McElligott recommended an MRI, which showed a full
thickness rotator cuff tear.
Dickens offered a second panel to treat the tear, and Mr. Hamon selected Dr. Becker
on November 12. Dr. Becker performed surgery on Mr. Hamon’s right shoulder on
December 19, and Mr. Hamon complained of pain after the surgery through May of 2020.
After a functional capacity evaluation, Dr. Becker stated on July 2 that he had “nothing
else to offer” Mr. Hamon.
Mr. Hamon returned to Dr. Becker on September 11 with left shoulder pain. Dr.
Becker did not believe that the left shoulder pain was primarily related to Mr. Hamon’s
right-shoulder work injury. Mr. Hamon underwent a left-shoulder MRI on October 6, and
Dr. Becker informed him that he could return to work with restrictions. Mr. Hamon
returned to Dr. Becker with left-shoulder pain on November 9. Dr. Becker placed him at
maximum medical improvement for his right shoulder on November 23, but his left
shoulder continued to hurt.
After continued complaints and a repeat MRI, which showed a full thickness left-
rotator cuff tear, Dr. Becker recommended surgery on January 27, 2021. Further, he wrote
that this injury occurred “around the same time as” the original right-shoulder injury. On
February 23, Dickens’s insurance adjuster, Deb Binns, told Mr. Hamon that she would be
scheduling an employer’s examination for the left-shoulder injury. She also told Dr.
Becker that approval of the left-shoulder surgery would be determined by the result of the
examination.
Ms. Binns scheduled an appointment with Dr. Hovis for April 14, but Mr. Hamon
did not attend. She rescheduled it for May 10, and Dickens moved the Court to compel his
attendance. The Court granted this motion, and Mr. Hamon attended the examination.
Afterward, Dr. Hovis stated that Mr. Hamon’s left-shoulder injury was primarily related to
his original right-shoulder injury, so Ms. Binns approved the left-shoulder surgery. Mr.
Hamon underwent the surgery.
Mr. Hamon argued that the undue delay in approving treatment for his left-shoulder
injury was wrongful and entitles him to an award of attorney’s fees in the amount of
$1,725.00.
Dickens did not contest the amount of the fee but denied wrongfully delaying Mr.
Hamon’s treatment.
Findings of Fact and Conclusions of Law
To prevail, Mr. Hamon must present evidence from which this Court can determine
that he is likely to succeed at a hearing on the merits. See McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015).
Tenn. Code Ann. § 50-6-226(d)(1)(B) provides that attorney’s fees may be awarded
when the employer “wrongfully denies a claim or wrongfully fails to timely initiate any of
the benefits to which the employee or dependent is entitled.” However, attorney’s fees
should not be awarded until “after the litigation has run its course,” so that the uncertainties
have been resolved. Andrews v. Yates Servs., LLC, 2017 TN Wrk. Comp. App. Bd. LEXIS
35, at *7-8 (May 23, 2017).
Attorney’s fees may be awarded at the interlocutory stage when “highly unusual
circumstances” are present, for example when an employer denies a claim based on its own
interpretations of the medical evidence, denies a claim without reasonably investigating it,
ignores evidence that favors the injured worker, or declines to reconsider a denial of a claim
after new evidence is provided. Travis v. Carter Express, Inc., 2019 TN Wrk. Comp. App.
Bd. LEXIS 25, at *14 (June 24, 2019); see also Thompson v. Comcast Corp., 2018 TN
Wrk. Comp. App. Bd. LEXIS 1, at *28-9 (Jan. 30, 2018). A denial of attorney’s fees at
the interlocutory stage of a case does not preclude an award of attorney’s fees at the
conclusion of the case. Id. at *13.
Mr. Hamon asserted that the employer failed to timely approve his left-shoulder
surgery, and thus he is entitled to attorney’s fees. However, at this interlocutory stage,
precedent cautions against awarding attorney’s fees barring “highly unusual
circumstances.” This case is not highly unusual, as the employer did not deny benefits
based on their own interpretations or without reasonably investigating the claim, nor did
the employer ignore evidence. While it is too early to award attorney’s fees, the issue may
be reconsidered at the conclusion of the case.
IT IS, THEREFORE, ORDERED THAT:
1. Mr. Hamon’s request for attorney fees is denied at this time.
2. This case is set for a Status hearing on September 9, 2021, at 11:00
a.m. Eastern. The parties must dial 855-543-5044 to participate in the
hearing.
Entered July 7, 2021.
______________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Mr. Hamon’s affidavit
2. Collective Medical Records
3. Dr. Paul Becker questionnaire
4. Dr. Paul Becker questionnaire
5. First Report of Injury-for identification purposes only
6. Panel of Physicians
7. Panel of Physicians
8. Declaration of Deb Binns
9. Affidavit and Accounting for Attorney Fees-Ryan Sarr
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Motion to Compel Medical Examination
4. Motion to Strike
5. Order Compelling Medical Examination
6. Request for Expedited Hearing
7. Motion for Continuance
8. Response to Motion for Continuance
9. Order Denying Continuance
10. Employer’s Pre-Hearing Brief
11. Order Setting Motion Hearing
12. Motion for Fees
13. Motion to Strike Motion for Fees
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on July 7, 2021.
Name Certified Fax Email Service sent to:
Mail
Ryan Sarr, X ryansarr@tawpc.com
Employee’s Attorney
Rosalia Fiorello, X rfiorello@wimberlylawson.com
Employer’s Attorney
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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