Diamond, Tommy v. Clayton Homes, Inc. ( 2018 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
TOMMY DIAMOND, II, ) Docket Number: 2018-02-0072 FILED
‘Aug 10, 2018
Employee, ) 11:18 AM(CT)
V. ) WORKERS’ COMPENSATION
CLAYTON HOMES, INC., ) State File Number: 12596-2018 “*™*
Employer, )
and )
BROADSPIRE SERVICES, INC., ) Judge Brian K. Addington
Insurance Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS
This Court conducted an Expedited Hearing on August 7, 2018, on Tommy
Diamond’s request for medical and temporary disability benefits. The issue is
whether he is likely to prevail at a hearing on the merits that he timely notified
Clayton Homes about a work injury and whether his claim is time-barred. For the
below, the Court holds Mr. Diamond gave timely notice but failed to file his claim
within the statute of limitations. Therefore, his requests are denied.
History of the Claim
Mr. Diamond built floors for Clayton Homes. On September 26, 2016, he
returned to work following bilateral carpal tunnel surgery (CTS) unassociated with
his job.’ He placed his right hand down to climb over a rail and felt immediate
pain in his right wrist. Mr. Diamond testified he did not know the extent of the
injury, but he reported it that day to his supervisor and Bruce Morey, the
environmental health and safety manager.
Two days later, Mr. Diamond primarily saw Dr. Grimaldi’s physician
assistant for persistent back pain. As an aside, the physician’s assistant mentioned
he was doing well, post-bilateral CTS release but that he still experienced pain.
' Dr. Nicholas Grimaldi performed the surgery.
Mr. Diamond continued to work and testified that he repeatedly reminded
supervisors about his injury. However, Mr. Morey testified he did not recall
discussing a work injury with Mr. Diamond or preparing paperwork to document
it.
On December 19, Mr. Diamond missed work due to pain. The next day he
went to Lakeway Regional Hospital for a wrist x-ray. The providers there released
him to work without restrictions. Later that day, he saw Dr. Grimaldi and
complained of right-wrist pain dating to his September injury at work. Addressing
the injury, Dr. Grimaldi ordered an MRI and wrist brace and placed Mr. Diamond
on restrictions of no use of the right hand.
Mr. Diamond returned to Clayton with the restrictions and told the
production manager that he could not do his job. Clayton informed him to not
return to work until he was fully able to perform his job duties.
In early January 2017, Mr. Diamond returned to Dr. Grimaldi, who noted
continued right-wrist pain with activity. An MRI revealed mild edema of the
hamate,” which Dr. Grimaldi viewed as a contusion. Dr. Grimaldi placed a cast on
the wrist and removed him from work. Later, Dr. Grimaldi noted Mr. Diamond
did well with the cast and replaced it with a wrist brace. He renewed Mr.
Diamond’s disability for a month. Later, Dr. Grimaldi recommended another MRI
if his symptoms did not improve.
On February 24, when Mr. Diamond provided Clayton Dr. Grimaldi’s
opinion and explained he could no longer do his job, Clayton terminated him.
Afterward, Mr. Diamond moved to West Virginia. There, he came under
the care of Dr. Alan Koester. Dr. Koester noted that a September MRI indicated a
wrist ligament tear. He performed ligament repair surgery on November 2. Due
to the history Mr. Diamond provided, Dr. Koester related the ligament tear and the
need for ligament surgery to the work event on September 26, 2016.
Mr. Diamond informed Clayton on November 21, 2017, that Dr. Koester
related his need for surgery to the alleged work event. Clayton filed a first report
of injury at that time, but it did not pay any workers’ compensation benefits. Mr.
Diamond filed a Petition for Benefit Determination (PBD) on February 1, 2018.
Clayton denied his claim on February 16. Mr. Diamond later underwent a wrist
fusion surgery in June 2018.
* The hamate is a carpal bone.
Mr. Diamond testified that he told Clayton about his injury on the date of
injury, and Clayton ignored his claim. He requested medical and temporary
disability benefits.’
Clayton asserted that Mr. Diamond did not provide timely notice of his
injury. In the alternative, Clayton argued the statute of limitations barred recovery
because Clayton never paid benefits and a year lapsed between the injury and the
date Mr. Diamond filed his PBD.
Analysis
Mr. Diamond need not prove every element of his claim by a
preponderance of the evidence to obtain relief at an expedited hearing. Instead, he
must present sufficient evidence that he is likely to prevail at a hearing on the
merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2017); McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27,
2015).
An employee must provide notice of an injury to his employer within
fifteen days. See Tenn. Code Ann. § 50-6-201 (a)(1). Here, the Court finds that
Mr. Diamond met that requirement when he notified Clayton repeatedly about his
injury starting on September 26, 2016, and continuing. The Court finds Mr.
Diamond’s testimony credible regarding notice.
However, a claim for benefits is barred if an employee fails to file a PBD
within one year of the date of injury when an employer refuses or fails to pay
provide benefits. See Tenn. Code Ann. § 50-6-203(b)(1). Mr. Diamond’s date of
injury is September 26 2016. Clayton paid no benefits. Mr. Diamond filed his
PBD on February 1, 2018, more than one year after the date of injury. His claim is
barred by the statute of limitations. Therefore, the Court holds that he is not likely
to prevail at a hearing on the merits, and his claim is denied at this time.
IT IS, THEREFORE, ORDERED as follows:
1, Mr. Diamond’s request for medical and temporary disability benefits is
denied at this time.
2. This matter is set for a Status Hearing on November 8, 2018, at 2:00
p.m. Eastern Time. The parties must call 855-943-5044 toll-free to
* He also requested permanent benefits, but that issue is not ripe for adjudication at an Expedited
Hearing.
participate in the hearing. Failure to appear by telephone may result in a
determination of the issues without your further participation.
ENTERED this the 10" day of August, 2018.
/s/ Brian K. Addington
BRIAN K. ADDINGTON
Workers' Compensation Judge
APPENDIX
Exhibits:
1. Tommy Diamond Affidavit
2. First Report of Injury
3. Wage Statement
4. Notice of Denial
5. Affidavit of Balee Greer
6. Medical Billing Ledger-University Physicians and Surgeons, Inc.
7. Medical Records-East Tennessee Spine and Orthopedic Specialists
8. Medical Records-Marshall Orthopaedics
9. Informal Position Statement of Clayton Homes, Inc. and collective exhibits
10. Collective Exhibits filed by Clayton Homes, Inc.
a. Medical Records from Lakeway Regional Hospital
b. CMH Personnel Action Request
c. Interactive Process Report
d. Termination Correspondence from CMH
11. Physical Therapy Records-University Physician and Surgeons
12. Petition for Benefit Determination and Amended Petition for Benefit
Determination
13. Photograph-Incision Scars
14. Photograph-Incision Scars and Tendon
Technical Record:
Petition for Benefit Determination-Original
Petition for Benefit Determination-Amended
Dispute Certification Notice
Request for Expedited Hearing
Employer’s Witness List for Expedited Hearing
Employer’s Exhibit List for Expedited Hearing
ANALY
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on, August 10, 2018.
Name Certified | Via | Via Sent To:
Mail Fax | Email
Tommy Diamond, 48 Diamond Dr.
Employee xX X_ | Delbarton, WV 25670
diamondboxinggym@gmail.com
Leslie Bishop, X | Ibishop@lewisthomason.com
Employer’s Attorney
j
A tA i 1
Aa aaa Af
PENNY SHRUM, COURT CLERK
Court of Workers’ Compensation Claims
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: “Expedited Hearing 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.
Filed Date Stamp Here EXPEDITED HEARING NOTICE OF APPEAL Docket #:
Tennessee Division of Workers’ Compensation
www.tn.gov/labor-wfd/wcomp.shtml State File #/YR:
wc.courtclerk@tn.gov
1-800-332-2667 RFA #:
Date of Injury:
SSN:
Employee
Employer and Carrier
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals Board.
[List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
L] Temporary disability benefits
L] Medical benefits for current injury
L] Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LiEmployer LJEmployee
Address:
Party’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev.4/15 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: LJEmployer LJEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers’ Compensation Appeals on this the day of ,20_.
[Signature of appellant or attorney for appellant]
LB-1099__rev.4/15 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam employed by:
My employer’s address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker’s Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: }
10. Assets:
Automobile $ _ (FMV)
Checking/Savings Acct. $
House $ _ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082