Vrancich, Michael v. All Around Industrial, Inc. , 2017 TN WC 136 ( 2017 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
MICHAEL VRANCICH, ) Docket No: 2016-05-1199
Employee, )
)
v. ) State File No: 95168-2016
)
ALL AROUND INDUSTRIAL, INC., )
Employer, ) Judge Dale Tipps
And )
)
TRAVELERS INS. CO., )
Insurance Carrier. )
)
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
This matter came before the undersigned workers’ compensation judge on July 18,
2017, for an Expedited Hearing. The present focus of this case is whether Mr. Vrancich
is entitled to medical and temporary disability benefits for his alleged back and shoulder
injuries. The central legal issue is whether Mr. Vrancich is likely to establish at a hearing
on the merits that he suffered an injury arising primarily out of and in the course and
scope of his employment. For the reasons set forth below, the Court cannot find that Mr.
Vrancich is likely to do so but finds he is entitled to a panel of physicians.
History of Claim
Mr. Vrancich, who was the only witness to testify at the hearing, presented the
following facts through his affidavit and testimony.1 While working for All Around
Industrial (AAI) as an ironworker and millwright on March 17, 2016, he began suffering
pain in his arms and back. He reported the injury to the main office, which directed him
to the safety coordinator, Chris Nanni. Mr. Vrancich told Mr. Nanni about the problem,
and they filled out an injury report. Mr. Vrancich sought medical treatment at the
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Because Mr. Vrancich lives in Ohio, the Court allowed him to participate in the hearing via telephone.
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emergency room, but AAI never provided any authorized treatment.
Mr. Vrancich seeks medical treatment and payment of temporary disability
benefits. AAI denies Mr. Vrancich is entitled to any workers’ compensation benefits. It
contends he is not likely to prove his alleged injuries arose primarily out of and in the
course and scope of his work. AAI also argues that Mr. Vrancich would not be entitled
to any temporary disability benefits because he presented no proof that any medical
doctor took him off work or restricted his work activities.
Findings of Fact and Conclusions of Law
The following legal principles govern this case. To prove a compensable injury,
Mr. Vrancich must show that his alleged injury arose primarily out of and in the course
and scope of his employment. To do so, he must show his injury was primarily caused
by an incident, or specific set of incidents, identifiable by time and place of occurrence.
Further, he must show, “to a reasonable degree of medical certainty that it contributed
more than fifty percent (50%) in causing the . . . disablement or need for medical
treatment, considering all causes.” “Shown to a reasonable degree of medical certainty”
means that, in the opinion of the treating physician, it is more likely than not considering
all causes as opposed to speculation or possibility. See Tenn. Code Ann. § 50-6-102(14)
(2016).
However, because this case is in a posture of an Expedited Hearing, Mr. Vrancich
need not prove every element of his claim by a preponderance of the evidence in order to
obtain relief. Instead, he must come forward with sufficient evidence from which this
Court might determine he is likely to prevail at a hearing on the merits. See Tenn. Code
Ann. § 50-6-239(d)(1); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Applying these principles to the facts of this case, the Court cannot find at this
time that Mr. Vrancich appears likely to meet his burden of proving a compensable
injury. Neither party submitted any medical opinions addressing the cause of Mr.
Vrancich’s condition. Absent such an opinion, he cannot prove “to a reasonable degree
of medical certainty” that his work “contributed more than fifty percent (50%) in causing
the . . . disablement or need for medical treatment, considering all causes.” However,
additional analysis is required in light of AAI’s failure to provide any initial medical
treatment.
Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) (2016) provides that, “in
any case when the employee has suffered an injury and expressed a need for medical
care, the employer shall designate a group of three (3) or more independent reputable
physicians . . . from which the injured employee shall select one (1) to be the treating
physician.” Further, the administrative rules governing an employer’s obligation to
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provide a panel state, “[u]pon notice of any workplace injury, other than a minor injury
for which no person could reasonably believe requires treatment from a physician, the
employer shall immediately provide the injured employee a panel of physicians that
meets the statutory requirements for treatment of the injury.” Tenn. Comp. R. & Regs.
0800-02-01-.25(1) (2016). An employer who fails to comply with this rule without good
cause could be assessed a civil penalty of up to $5,000. Id.
Further, at an expedited hearing, an employee need not establish the
compensability of his or her claim by a preponderance of the evidence, but rather where
the employee comes forward with sufficient evidence to support that a work event
resulted in injury, it may also be sufficient to support an order compelling an employer to
provide a panel. See Lewis v. Molly Maid, et al., 2016 TN Wrk. Comp. App. Bd. LEXIS
19, at *8-9 (Apr. 20, 2016). In McCord, the Workers’ Compensation Appeals Board
found that:
[W]hether the alleged work accident resulted in a compensable injury has
yet to be determined. Therefore, while Employee has not proven by a
preponderance of the evidence that she suffered an injury arising primarily
out of and in the course and scope of employment, she has satisfied her
burden at this interlocutory stage to support an Order compelling Employer
to provide a panel of physicians.
McCord at *16, 17. Thus, the question is whether Mr. Vrancich has provided sufficient
evidence to satisfy his “burden at this interlocutory stage” that he is entitled to a panel of
physicians.
Mr. Vrancich’s version of events was the only proof presented at the hearing
regarding the details of his workplace injury. He testified that he began suffering
symptoms on March 17, 2016, and reported the problem to his supervisor, Mr. Nanni,
who helped him fill out an injury report. Mr. Nanni was present for the hearing but did
not testify, and AAI presented no other evidence to refute Mr. Vrancich’s description of
these events. Thus, the undisputed evidence establishes that Mr. Vrancich reported to
AAI that he was having back and arm pain and that he attributed these problems to his
work. Based on the foregoing authority, this entitled him to a panel of physicians, which
AAI failed to provide.
AAI contended that there is no evidence Mr. Vrancich suffered a work injury, but
this argument overlooks his testimony. Similarly, AAI’s contention that Mr. Vrancich
produced no written documentation of reporting an injury ignores his sworn testimony
that he and Mr. Nanni filled out an injury report. In the absence of any countervailing
proof from Mr. Nanni or some other witness that AAI never received notice of an injury,
the fact that Mr. Vrancich was unable to produce a copy of that report is irrelevant.
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AAI also questioned Mr. Vrancich’s credibility, based on his cross-examination
answers and a hospital record showing he subsequently injured himself while doing yard
work. The Court is sympathetic to AAI’s concerns and notes that Mr. Vrancich tended to
become somewhat evasive when asked about his current abilities, Facebook posts, and
light duty assignments. However, these questions are more relevant to the issues of Mr.
Vrancich’s current condition and his claim for temporary disability benefits. An attack
on the credibility of Mr. Vrancich’s version of the injury might be more persuasive if
AAI had offered any proof that he never reported a work injury. Absent such evidence,
the Court will not extend AAI’s credibility concerns to the question of whether Mr.
Vrancich suffered symptoms at work and reported them to his supervisors.
Therefore, the Court finds Mr. Vrancich provided sufficient evidence to satisfy his
burden at this interlocutory stage that he is entitled to a panel of physicians. AAI is
ordered to provide a panel of physicians from which Mr. Vrancich may choose an
authorized physician for evaluation and, if appropriate, treatment of his alleged injuries in
accordance with Tennessee Code Annotated section 50-6-204(a)(1)(A) (2016).
Mr. Vrancich also seeks payment of temporary disability benefits. An injured
worker is eligible for temporary total disability (TTD) benefits if: (1) the worker became
disabled from working due to a compensable injury; (2) there is a causal connection
between the injury and the inability to work; and (3) the worker established the duration
of the period of disability. Jones v. Crencor Leasing and Sales, TN Wrk. Comp. App.
Bd. LEXIS 48, at *7 (Dec. 11, 2015). As noted above, Mr. Vrancich failed to prove he is
likely to meet his burden of proving a compensable injury. He also presented no
evidence that any medical provider ever took him completely off work or assigned
temporary work restrictions. Therefore, the Court cannot find at this time that he appears
likely to prevail on a claim for temporary disability benefits at a hearing on the merits.
IT IS, THEREFORE, ORDERED as follows:
1. AAI shall provide Mr. Vrancich with a panel of physicians and any medical
treatment made reasonably necessary by his March 17, 2016 injury in accordance
with Tennessee Code Annotated section 50-6-204.
2. Mr. Vrancich’s request for temporary disability benefits is denied at this time.
3. This matter will be set for a Scheduling Hearing during the upcoming hearing on
AAI’s Motion to Dismiss.
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) (2016). The Insurer or Self-Insured
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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 may result in a
penalty assessment for non-compliance.
5. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program@tn.gov.
ENTERED this the 20th day of July, 2017.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits:
1. Affidavit of Michael Vrancich
2. Wage Statement
3. August 16, 2016 record from Humility of Mary Health Partners
Technical record:2
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
2
The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Benefits was sent to the following recipients by the following methods of
service on this the 20th day of July, 2017.
Name Certified Via Via Email Address
Mail Fax Email
Michael Vrancich X X 173 Terrace Drive
Youngstown, OH 44512
Mikev330@outlook.com
Chip Storey, Attorney X cstoreyj@travelers.com
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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