Backer, Martin v. Azuma Leasing Company

FILED
July 2, 2015
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COURT OF WORKERS' COMPENSATION CLAIMS
AT KNOXVILLE
MARTIN BACKER, Docket No.: 2015-06-0023
Employee,
v. State File No.: 94424-2014
AZUMA LEASING COMPANY, Date of Injury: November 18, 2014
Employer,
And Judge: Pamela B. Johnson
TRAVELERS INSURANCE COMPANY,
Insurance Carrier.
EXPEDITED HEARING ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge upon the
Requests for Expedited Hearing filed separately by the parties, through counsel, on March
17, 2015, pursuant to Tennessee Code Annotated section 50-6-239 (2014). This Court
conducted an in-person, evidentiary hearing on May 8, 2015. Upon review of the Requests
for Expedited Hearing, the evidence presented at the hearing, the arguments of counsel, and
in consideration of the applicable law, the Court finds Mr. Backer is not entitled to the
benefits requested.
ANALYSIS
Issues
Whether Mr. Backer sustained an injury arising primarily out ofand in the course and
scope of employment with Azuma Leasing;
Whether Mr. Backer provided adequate notice to Azuma Leasing ofan alleged injury
during his employment with Azuma Leasing;
Whether Mr. Backer is entitled to past or future medical expenses; and
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Whether Mr. Backer is entitled to any past or future temporary disability benefits, and
if so, in what amount.
Evidence Submitted
The Court designated the following as the Technical Record:
• Petition for Benefit Determination (PBD), filed January 15, 2015,
• Dispute Certification Notice (DCN), filed March 17, 2015,
• Mr. Backer's Request for Expedited Hearing, filed March 17, 2015,
• Azuma's Request for Expedited Hearing, filed March 17, 2015, and
• Order of Transfer, entered Apri110, 2015.
The Court did not consider attachments to the above filings unless admitted into
evidence during the Expedited Hearing. The Court considered factual statements in the
above filings and any attachments to them as allegations unless established by the evidence.
The Court admitted into evidence the following:
• EXHIBIT 1: Certification and Medical Records and Expenses of Sweeney
Chiropractic (20 pages),
• EXHIBIT 2: Certification and Medical Records ofTriStar Horizon Medical
Center (64 pages),
• EXHIBIT 3: First Report of Work Injury, Form C-20,
• EXHIBIT 4: Choice of Physicians, Form C-42,
• EXHIBIT 5: Wage Statements, Form C-41 with Earning Statements attached
(4 pages),
• EXHIBIT 6: Notice ofDenial of Claim for Compensation, Form C-23,
• EXHIBIT 7: Mr. Backer's Signed Statement, dated December 8, 2014,
• EXHIBIT 8: Separation Notices, dated December 8, 2014, and December 9,
2014, (2 pages),
• EXHIBIT 9: Job Description (2 pages),
• EXHIBIT 10: Mr. Backer's Employment Application (2 pages),
• EXHIBIT 11: Portions of Azuma's Company Policies (6 pages),
• EXHIBIT 12: DMN Corporation Payroll Record, for pay period beginning
November 15 through 28, 2014,
• EXHIBIT 13: Letter from Mary Becerra to Mr. Backer, dated December 3,
2014,
• EXHIBIT 14: Mr. Backer's Responses to Written Discovery, dated April15,
2015, and April27, 2015,
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• EXHIBIT 15: Mr. Backer's Criminal Record of Davidson County Criminal
Court Clerk and Officer's Affidavit (2 pages), 1
• EXHIBIT 16 (Marked for Identification Only): Mr. Backer's November 18,
20 14 Schedule, 2 and
• EXHIBIT 17: Mr. Backer's Recorded Statement. 3
For purposes of the Expedited Hearing, the parties stipulated to an average weekly
wage of $775.00 per week.
The following individuals offered testimony at the Expedited Hearing:
• Martin Backer,
• Rebecca McGuire,
• Mary Becerra, Azuma's Corporate Representative,
• Doug Tibbs, Jr.,
• Bryan Cobb, and
• Scott Lewis, Traveler's Insurance's Corporate Representative.
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Mr. Backer's attorney objected to the introduction of Exhibit 15 on the basis that Azuma's attorney failed to furnish a
copy of Mr. Backer's Criminal Record and the Officer's Affidavit in advance of the hearing. Azuma's attorney
responded that it is not required to provide a readily available, public record used to impeach a witness's statement made
under oath. During the hearing, the Court marked Exhibit 15 for identification purposes only and took the matter under
advisement. This Court overrules the objection and admits the Criminal Record and Officer's Affidavit for impeachment
purposes. See Tenn. R. Evict. 613(b) (permitting extrinsic evidence of a prior inconsistent statement by a witness for
impeachment purposes); Davis v. Hall, 920 S.W.2d 213, 216-17 (Tenn. Ct. App. 1995) ("In order for a statement to be
used to impeach a witness, the statement must be inconsistent with the statement given at trial." (emphasis added)).
2
Mr. Backer's attorney objected to the admissibility of Exhibit 16 on the basis that Azuma's attorney failed to furnish a
copy of the November 18,2014 schedule in advance of the hearing and further objected to its admissibility as a business
record. Azuma's attorney responded that Ms. Becerra's testimony established that the schedule was a business record.
During the hearing, the Court marked Exhibit 16 for identification purposes only and took the matter under advisement.
This Court now sustains the objection of Mr. Backer's attorney and excludes Exhibit 16 from the record. See Tenn.
Comp. R. & Regs. 0800-02-21-.14(l)(b )(2014) ("[I]n no event later than five (5) business days after the motion [for
expedited hearing] is filed with the clerk, the opposing party shall submit all information in its possession demonstrating
that the employee is not entitled to temporary disability or medical benefits.")
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Mr. Backer's attorney objected to the admissibility of Exhibit 17 based on hearsay because the witness, through whom
Azuma attempted to introduce the recorded statement, did not take Mr. Backer's recorded statement and neither the
testifying witness nor the adjuster identified in the recorded statement transcribed the recorded statement. Azuma's
attorney responded that Mr. Backer admitted that he gave a recorded statement and admitted that everything he stated in
the recorded statement was true and accurate. During the hearing, the Court marked Exhibit 17 for identification
purposes only and took the matter under advisement. This Court now overrules the objection, finds the Recorded
Statement falls under the Hearsay Exception for Records of Regularly Conducted Activity, and admits the Recorded
Statement into evidence. See Tenn. R. Evict. 803(6) (2014).
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History of Claim
Mr. Backer worked for Azuma Leasing Company (Azuma) as a delivery driver and
installer. See PBD. On November 18, 2014, Mr. Backer allegedly sustained an injury to his
neck and back, while "taking a 3 50 pound stackable washer and dryer up one flight of stairs."
!d. Mr. Backer continued working that day and returned to work on November 19, 20, 21,
and 24,2014. On the morning ofNovember 25,2014, Mr. Backer dressed for work, sneezed
several times and reached for allergy medication from a cabinet at his home, when he
experienced pain in his neck, back, and his "body locked up."
Mr. Backer sought treatment from Dr. Jim Sweeney of Sweeney Chiropractic on
November 25, 2014. During the visit, Mr. Backer advised Dr. Sweeney that he experienced
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neck pain radiating into the upper back due to a work-related accident. See Exhibit 1, p. 5.
The office note listed the onset as "acute" and the cause of symptoms as "unknown." !d. Dr.
Sweeney diagnosed "Displacement Of Cervical Disc Without Myelopathy," "Spasm Of
Muscles," "Cervicalgia," and "Pain In Thoracic Spine." !d. He recommended treatment
three times per week for one month. !d. On November 26, 2014, he recommended that Mr.
Backer take off work the entire week. See Exhibit 1, p. 7. Dr. Sweeney continued his off
work recommendation during the December 1, 2014 visit. See Exhibit 1, p. 9.
On December 4, 2014, he noted that Mr. Backer felt "slightly better" with "an
improved ROM." See Exhibit 1, p. 11. Dr. Sweeney further noted that Mr. Backer expressed
concern about "working with this condition because he does not want to get worse." !d. On
December 8, 2014, he again recommended that Mr. Backer take off work the entire week.
See Exhibit 1, p. 15. On December 12, 2014, he recorded that Mr. Backer experienced
"another drop in pain" and felt "better," noting that "the pain in the upper back is better but
the neck still hurts." See Exhibit 1, p. 16. The last office note contained in Exhibit 1 is dated
December 16, 2014.
By letter dated April28, 2015 to Mr. Backer's attorney, Dr. Sweeney stated:
Mr. Backer was treated for a workman's comp injury from
11125/2014- 12/16/2014. The injury occurred a few day (sic)
prior to his first treatment. He was moving an object at work
and he felt a very sharp pain. He thought the pain would go
away on its own but [it] kept getting worse. His symptoms
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Mr. Backer's attorney filed a Notice of Filing of Chiropractic Records and Report on April30, 2015. Pursuant to Tenn.
Comp. R. & Regs. 0800-02-21-.16(6)( c)(20 14), Mr. Backer's attorney filed a Corrected Notice ofFiling of Chiropractic
Records and Report on May 4, 2015, wherein the chiropractic records contained page numbers in the lower, right-hand
corner. The corrected, numbered version did not contain a page "0005." This Court replaced the missing page 0005 with
the same page from the unnumbered, original version and added "0005" to the lower, right-hand corner of the page for
ease of identification by this Court and the parties.
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decrease when sitting still. He was very nervous about working
with this condition. I requested Mr. Backer to take work off for
the next two weeks due to the fear of causing more damage.
I have diagnosed Mr. Backer with cervical sprain/strain and
mild discopathy due to the trauma he sustained with lifting an
object at work. The medical bills were consistent with this type
of injury. I explained to Mr. Backer that if he did notp (sic)
respond to care we would refer him to another physician for a
second opinion.
In the notes I stated, "unknown" and that was a mistake entered
by my staff as they were performing my dictation. His injury in
my clinical opinion was work related.
See Exhibit 1, p. 2.
Mr. Backer last worked for Azuma on November 24, 2014. On December 3, 2014,
Mar Becerra, Human Resource Coordinator for Azuma, wrote Mr. Backer, advising him that
Azuma unsuccessfully attempted to contact him several times, instructing him to report to the
nearest Concentra Urgent Care for testing and treatment, and requesting a response by
Monday, December 8, 2014. See Exhibit13. In the letter, Ms. Becerra further advised Mr.
Backer that Azuma would consider his failure to respond as job abandonment. !d. On
December 8, 2014, Mr. Backer faxed a hand-written response to Azuma, stating, "I am not
abandoning my job, but you will be hearing from my workers compensation lawyer." See
Exhibit 7. On December 9, 2014, Azuma issued a Separation Notice and identified the
circumstances of separation as "Job abandonment. Employee has not reported to work,
responded to phone call, or returned phone calls since December 4, 2014." See Exhibit 8.
A dispute exists between the parties as to when Mr. Backer reported the alleged work
injury and home incident and what he reported as to each incident. Azuma's Carrier prepared
a First Report of Work Injury on December 3, 2014, stating:
[E]mployee claimed he had a neck strain from having a sneezing
fit at home. When employee found out he would not be paid for
time missed he claimed it was a work injury but gave no details
and will not answer calls from corporate or city manager. We
will be sending a certified letter.
See Exhibit 3. Upon receiving notice that Mr. Backer claimed a work injury, Azuma initially
instructed Mr. Backer to go to Concentra for a drug screen. Mr. Backer did not go to
Concentra or complete the drug screen. Azuma's Carrier later provided Mr. Backer a panel
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of physicians and he selected Carespot ofNashville on December 18,2014. See Exhibit 4.
Azuma's Carrier did not schedule or authorize an appointment for Mr. Backer with Carespot.
On January 6, 2015, an investigator for Azuma's Carrier obtained Mr. Backer's recorded
statement. See Exhibit 17. Thereafter, Azuma's Carrier filed a Notice ofDenial of Claim for
Compensation on January 12, 2014, based upon "subsequent intervening incident. No
medical evidence of injury. Right to Reserve." See Exhibit 6.
Mr. Backer filed a Petition for Benefit Determination on January 15, 2015. The
parties did not resolve the disputed issues through mediation and the Mediating Specialist
filed the Dispute Certification Notice on March 17, 20 15. On March 17, 20 15, the parties
separately filed Requests for Expedited Hearing. This Court conducted an in-person
evidentiary hearing on May 8, 20 15. Mr. Backer and his mother, Rebecca McGuire, testified
on behalf of Mr. Backer. Mary Becerra, Doug Tibbs, Bryan Cobb, and Scott Lewis testified
on behalf of Azuma and its workers' compensation carrier, Traveler's Insurance.
During the Expedited Hearing, Mr. Backer testified that, on November 18,2014, he
made a delivery in Cool Springs, unloaded his truck, and proceeded to pull a stackable
washer and dryer up a flight of stairs, using an electric dolly. Half way up the flight of stairs,
he felt a pop in his back and experienced pain the rest of the day and the remainder of the
week. Mr. Backer testified that the pain was located in his mid to upper back, between his
shoulder blades, and neck. Mr. Backer continued working the remainder of the day. The
next morning, Mr. Backer arrived at the warehouse and reported the incident to his
supervisor, Doug Tibbs. He told Mr. Tibbs that "I hurt my back yesterday" and Mr. Tibbs
replied, "Yeah, you know, this job will do that to you." Mr. Backer testified that the pain
became progressively worse. Mr. Backer denied any prior neck or back problems before
November 18, 2014.
Mr. Backer testified that, on the morning of November 25, 2014, he dressed for work
and sneezed a couple of times, when his "neck and whole body locked up." Mr. Backer
testified, "I could not move my neck. I could not turn my head. I could not do anything."
Mr. Backer rushed to work and told Mr. Tibbs about the sneezing incident, advised that he
was unable to work in his condition, and that he intended to seek medical treatment. That
same day, he sought treatment from Dr. Jim Sweeney, who diagnosed him with a twisted
vertebrae and disc damage in his neck. Thereafter, Mr. Backer treated with Dr. Sweeney and
reported his medical status to Mr. Tibbs following each visit.
Mr. Backer further testified that, on December 3, 2014, he advised Mr. Tibbs that he
wanted to file a workers' compensation claim. Mr. Tibbs contacted Mary Becerra, who
instructed Mr. Backer to go to the nearest "Concentra" to get a "drug and blood test and get
medical treatment." Mr. Backer did not go to Concentra as instructed, due to concerns with
Concentra's reputation or before he spoke with a lawyer concerning his rights.
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Mr. Backer testified that he received telephone calls from Bryan Cobbs of Azuma. He
later received a letter from Azuma, dated December 3, 2014, advising him that ifhe did not
contact Azuma by December 8, 2014, Azuma would consider his nonresponse as job
abandonment. In response, Mr. Backer faxed Azuma a letter to Azuma on December 8,
2014. See Exhibit 7. On December 9, 2014, Mr. Backer received a separation notice from
Azuma, which stated, "Job abandonment. Employee has not reported to work, responded to
phone call, or returned phone calls since December 4, 2014." See Exhibit 8.
Mr. Backer testified that he later received a C-42 form, Choice of Physicians, and
selected Carespot of Nashville. See Exhibit 4. Mr. Backer testified that Azuma did not
schedule an appointment for him. Mr. Backer described his neck pain: "It starts out in the
left side of my neck and it goes all the way down into my collarbone and the same on the
right side." Mr. Backer further described difficulty sleeping and increased pain with lifting
over ten (10) pounds.
On cross-examination, Mr. Backer admitted that Azuma assigned him a company
phone, but he did not use the company phone to report the November 18,2014 work injury,
while making the delivery in Cool Springs, Tennessee. Mr. Backer admitted that he did not
request medical treatment when he reported the November 18, 2014 work injury to Mr. Tibbs
the next morning. Mr. Backer denied that, on November 25, 2014, he developed neck pain
when he sneezed, but testified that the neck pain began when he reached for an allergy
medication in a cabinet at home. Mr. Backer also admitted that he did not seek medical
treatment until following the November 25, 2014 incident.
Mr. Backer admitted that, during the first week of December 2014, Mr. Tibbs advised
him that he needed to go to Concentra to submit to a drug screen. Mr. Backer admitted
further that he knew from company policies that Azuma required a drug screen after a work
injury, but he refused to go to Concentra for the post-injury drug test and never advised
Azuma of any objection to a drug test or treatment with Concentra.
Mr. Backer additionally admitted that he knew from company policies that Azuma
required employees to report absences timely and Azuma deemed an employee's failure to
report to work for three (3) days as job abandonment. Mr. Backer also knew from the letter
from Azuma dated December 3, 2014, that Azuma tried to reach him on several occasions.
Except for the faxed letter ofDecember 8, 2014, Mr. Backer admitted that he made no effort
to contact Azuma to discuss his work status, despite that Mr. Backer maintained possession
of the company phone. Mr. Backer failed to return the company phone after his termination.
Mr. Backer's mother, Rebecca McGuire, testified that she faxed a letter from Mr.
Backer to Azuma on December 8, 2014. Ms. McGuire testified further that she received a
telephone call on her cellphone from BJ Roscoe or Robbins, who identified himself as the
president of Azuma. Ms. McGuire testified, "He said that he was going to try to help Martin
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because he wasn't sure if Doug Tibbs reported the injury correctly and that he would let me
know. And then, that was it."
Mary Becerra, Azuma's Human Resource Director, testified that Azuma "always tries
to accommodate restrictions." Ms. Becerra testified that Azuma terminated Mr. Backer
because he did not respond to her letter dated December 3, 2014. Ms. Becerra did not
receive the fax from Mr. Backer, dated December 8, 2014, until December 9, 2014, because
Mr. Backer faxed the letter to the general fax number. Ms. Becerra testified that she
completed a Separation Notice, listing "Job Abandonment" as the reason for separation.
Prior to her December 3, 2014 letter, Ms. Becerra testified that she attempted on several
occasions to contact Mr. Backer on both his personal phone and on the company phone, as
did Doug Tibbs, City Manager for Nashville, and Bryan Cobb, Director of Operations. Ms.
Becerra further testified that Mr. Backer's November 18, 2014 schedule showed "he had a
delivery for a washer, not a stackable, to the Viera Cool Springs apartments, but it was
rescheduled."
On cross-examination, Ms. Becerra admitted that Mr. Backer completed deliveries on
November 18, 19, 20, 21, and 24, 2014. Following Mr. Backer's termination, Ms. Becerra
admitted that Azuma replaced Mr. Backer with another employee. When asked whether
Azuma accommodated any employee's restrictions in the Nashville area, Ms. Becerra
admitted that she could not recall any employee accommodated in the Nashville area. Ms.
Becerra also testified that Azuma assigned Mr. Backer an android tablet that listed his daily
delivery schedule, which Mr. Backer had not returned. On redirect, Ms. Becerra requested
that Mr. Backer return to Azuma the company phone and android tablet in accordance with
the company's equipment policy.
Doug Tibbs, Azuma's City Manager for the Nashville area, testified he supervised Mr.
Backer in November 2014. Mr. Tibbs testified that Mr. Backer first reported an injury on
November 25, 2014, when he appeared in his office. Mr. Tibbs testified, "he [Mr. Backer]
came in, he stated that he had hurt himself and did not believe that he was going to be able to
work." Mr. Tibbs further testified that "He [Mr. Backer] stated that, when he was at home,
he had 'a sneezing fit of about 10-12 sneezes,' he stated that he felt the pain in his neck area,
shoulder blade area, and right after that, he reached up into a cabinet or cupboard for some
allergy medication." Mr. Tibbs testified also that, approximately one week later, Mr. Backer
came to him and indicated, "he did have an injury, it was due to work." Mr. Tibbs testified
that Mr. Backer advised him that he planned to seek treatment from a chiropractor.
Subsequently, Mr. Backer provided Mr. Tibbs a note from the chiropractor stating Mr.
Backer was under the care of the chiropractor and provided reasons why he would be out of
work on certain dates. Other than the November 25, 2014 incident at home, Mr. Tibbs
denied that Mr. Backer reported any work injury involving a delivery. Mr. Tibbs testified
that he told N.fr. Backer to go to Concentra for a drug screen and advised him, "Azuma was
going to go ahead and open up a claim for him to try to help him out." Mr. Tibbs testified
8
that he repeatedly called Mr. Backer to inquire as to how he was doing, but he never
responded.
On cross-examination, Mr. Tibbs did not recall any conversation with Mr. Backer,
wherein Mr. Backer reported a November 18, 2014 work injury to him on November 19,
2014, or that Mr. Backer reported that he hurt since November 18,2014. Mr. Tibbs admitted
that Azuma hired another employee to work in the Nashville area following Mr. Backer's
termination.
Bryan Cobb, Azuma's Director of Operations, testified that he hired Mr. Backer in
July 2014, while working in the capacity of Regional Manager for Azuma. Mr. Cobb
testified that, on December 3, 2014, he learned from Doug Tibbs that Mr. Backer claimed an
injury. Mr. Cobb testified that he called Mr. Backer twice on December 3, 2014, and a few
times in the following days, but received no response from Mr. Backer. Mr. Cobb testified
that Azuma assigned Mr. Backer an android tablet and cell phone, which he could have used
to communicate with Azuma to report an injury.
Scott Lewis, a claims adjuster for Travelers Insurance, testified that he electronically
filed the First Report of Work Injury concerning Mr. Backer's claim. He further testified that
he prepared the panel of physicians and sent the panel to Mr. Backer, who returned the form
after selecting Carespot. Mr. Lewis testified that he obtained a recorded statement from Mr.
Backer in the course of his investigation of his claim. Mr. Lewis testified that Travelers
Insurance denied the claim and filed a Notice of Denial of Claim for Compensation.
On cross-examination, Mr. Lewis admitted that Azuma did not authorized Mr. Backer
to seek care at Carespot, whom he selected from the panel, because Travelers Insurance
denied his claim for workers' compensation benefits due to a "subsequent, intervening
incident." Mr. Lewis testified:
[I]t was his sneezing fit that occurred on the morning of the 25th,
I believe it was, at his home. He worked full time without any
notice of claim. He was able to do his job fully from the time
that he claims he suffered an injury up until that morning. He
did not seek any treatment and the only thing, uh that, the reason
that he sought treatment was because of the sneezing fit. If not
for the sneezing fit and his back locking up, it didn't appear he
was going to seek treatment because he hadn't before.
Mr. Backer's Contentions
Mr. Backer, through counsel, contends that Mr. Backer legitimately sustained an
injury on the job. When Azuma failed to respond and ignored his explanation, Mr. Backer
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sought treatment from a chiropractor, Dr. Sweeney. Dr. Sweeney recorded a history from
Mr. Backer, examined him, assessed a diagnosis consistent with the injury, recommended
that Mr. Backer not work, and referred Mr. Backer to a specialist if his condition did not
improve. See Exhibit 1, p. 2. Azuma's Carrier denied the claim because of a subsequent,
intervening event. Mr. Backer cites Anderson v. Westfield Group, 259 S.W.3d 690 (Tenn.
2008) in support of his case. Azuma is responsible for the direct and natural consequences of
the November 18, 2014 work injury. Mr. Backer argues that the sneezing fit and reaching
into a cabinet were not subsequent, intervening events and are not acts of negligence. Mr.
Backer's neck and shoulders did not stop hurting from the November 18,2014 incident. Mr.
Backer told Mr. Tibbs of the November 18, 2014 injury. Mr. Backer went to the chiropractor
to seek relief. Azuma did not schedule an appointment for Mr. Backer with the physician
selected from the panel of physicians. Mr. Backer asks the Court to find that Azuma must
accept the Employee's choice of physician as selected by the panel, authorize and schedule
an appointment for the physician chosen, and award temporary total disability benefits from
November 25, 2014, based upon Dr. Sweeney's findings, until there is a further
determination of Mr. Backer's temporary disability status.
Azuma's Contentions
Azuma, through counsel, contends that Mr. Backer bears the burden of proving every
element of his case, and, under the McCall standard, he must demonstrate that he is likely to
succeed on the merits at trial. Azuma did not receive notice of a work injury on November
18,2014, despite Mr. Backer's possession of a company tablet and cell phone. Mr. Backer
continued working and did not seek treatment until following the sneezing fit on November
25, 2014.
Azuma challenges Mr. Backer's credibility based upon conflicting information
provided in his Azuma Leasing Employment Application, his responses to interrogatories,
and his recorded statement and concerning his education, his job history, a prior motor
vehicle accident, his prior criminal history, and the November 25, 2014 incident at home.
Mr. Backer admitted to many contradictions in the record. Mr. Backer testified he delivered
a stackable washer and dryer on November 18, 2014, in Cools Springs, but his schedule
showed he did not.
Azuma asserts that the Court may consider all evidence, including the recorded
statement, to determine Mr. Backer's credibility. Azuma avers that, in the recorded
statement, Mr. Backer stated he sneezed, felt pain, and his back locked up. Later, in the
recorded statement, Mr. Backer stated he reached into the cabinet, felt pain and his back
locked up. Mr. Backer first denied that he reported the sneezing event, and then later stated
that he told Mr. Tibbs of the sneezing event.
Azuma avers that it attempted on numerous occasions, through several individuals, to
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contact Mr. Backer, but he did not respond. The December 3, 2014 letter confirmed
Azuma's attempts to contact Mr. Backer and Mr. Backer failed to respond, with the
exception ofthe fax of December 8, 2014. Mr. Backer's only response was to send Azuma a
fax on December 8, 2014, advising that he was not abandoning his job.
Azuma further contends that Mr. Backer knew of Azuma's company policies
concerning drug screens following work injuries, but he refused to submit to the drug screen.
He testified that he was fearful of seeking treatment at Concentra, but he did not notify
Azuma of his objections or concerns. His actions reflected noncompliance, pursuant to
Tennessee Code Annotated section 50-6-204 (2014).
Azuma argues that its denial of the claim should stand because there is no proof that
Mr. Backer sustained an injury at work. Dr. Sweeney's April28, 2015letter fails to satisfy
the requirements of Tennessee Code Annotated section 50-6-102( 13) (20 14) and fails to
state his opinion within a reasonable degree of certainty. Moreover, Mr. Backer did not
report sneezing event to Dr. Sweeney such that his opinion on causation did not consider all
causes as required by the statute. Azuma cites Tindall v. Waring Park, 725 S.W.2d 935
(Tenn. 1987), and Trosper v. Armstrong, 273 S.W.3d 598 (Tenn. 2008), to support its
position.
Azuma further argues that Mr. Backer is not entitled to temporary total disability
benefits. Azuma had light duty work available. Mr. Backer abandoned his job and Azuma
terminated him for failure to contact it. But for Mr. Backer's job abandonment, Azuma
would have accommodated his restrictions if a treating physician placed light duty
restrictions on his activities.
Findings of Fact and Conclusions of Law
Standard Applied
The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with basic
principles of statutory construction favoring neither the employee nor employer. Tenn. Code
Ann. § 50-6-116 (20 14 ). At an expedited hearing, an employee need not prove every element
of his or her claim by a preponderance of the evidence in order to be eligible for benefits.
McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk Comp App Bd
LEXIS 6, *7-8, 9 (Tenn. Workers' Comp. App. Bd. March 27, 2015); cf McCall v. Nat'!
Health Corp., 100 S.W.3d 209,214 (Tenn. 2003). Instead, an employee must come forward
with sufficient evidence from which the trial judge could conclude that the employee is likely
to prevail at a hearing on the merits. !d.
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Factual Findings
This Court finds that Mr. Backer sustained an injury to his neck and upper back on
November 18, 2014, while making a delivery for Azuma Leasing. Mr. Backer continued
working that day and returned to work on November 19, 20, 21, and 24, 2014. On the
morning of November 25, 2014, Mr. Backer dressed for work, sneezed several times and
reached for allergy medication from a cabinet at his home, when he experienced pain in his
neck and back, and his body locked up. Mr. Backer reported a work injury and the incident
at home to Azuma within thirty days of both incidents. Upon receiving notice of Mr.
Backer's desire to file a claim for workers' compensation benefits, Azuma instructed Mr.
Backer to go to Concentra Urgent Care for a post-accident drug screen and for medical
treatment. Mr. Backer refused to go to Concentra to complete the drug test and did not report
any objection with Concentra to Azuma. Azuma thereafter provided Mr. Backer a panel of
physicians, from which Mr. Backer selected Carespot, but Azuma did not authorize an
appointment for Mr. Backer at Carespot.
Application ofLaw to Facts
The Tennessee Workers' Compensation Act defines "injury" and "personal injury" as
an injury by accident, ... arising primarily out of and in the course and scope of employment,
that causes death, disablement or the need for medical treatment of the employee; provided,
that:
(A) An injury is "accidental" only if the injury is caused by a specific incident,
or set of incidents, arising primarily out of and in the course and scope of
employment, and is identifiable by time and place of occurrence, and shall not
include the aggravation of a preexisting disease, condition or ailment unless it
can be shown to a reasonable degree of medical certainty that the aggravation
arose primarily out of and in the course and scope of employment;
(B) An injury "arises primarily out of and in the course and scope of
employment" only if it has been shown by a preponderance of the evidence
that the employment contributed more than fifty percent (50%) in causing the
injury, considering all causes;
(C) An injury causes death, disablement or the need for medical treatment only
if it has been shown to a reasonable degree of medical certainty that it
contributed more than fifty percent (50%) in causing the death, disablement or
need for medical treatment, considering all causes;
(D) "Shown to a reasonable degree of medical certainty" means that, in the
opinion of the physician, it is more likely than not considering all causes, as
opposed to speculation or possibility;
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(E) The opinion of the treating physician, selected by the employee from the
employer's designated panel of physicians pursuant to§ 50-6-204(a)(3), shall
be presumed correct on the issue of causation but this presumption shall be
rebuttable by a preponderance of the evidence.
Tenn. Code Ann.§ 50-6-102(13) (2014).
In the present case, Mr. Backer reported a specific incident, identifiable by time and
place, which occurred while he performed his job duties at Azuma. The issue then turns to
whether the November 18, 2014 incident resulted in an injury arising primarily out of and in
the course and scope of his employment at Azuma, and shown by a reasonable degree of
medical certainty. The only medical opinion contained in the record before this Court that
addressed causation is the report of Dr. Sweeney, an unauthorized treating physician. Dr.
Sweeney stated in his letter of April28, 2015, "I have diagnosed Mr. Backer with cervical
sprain/strain and mild discopathy due to the trauma he sustained with lifting an object at
work ... His injury in my clinical opinion was work related." See Exhibit 1, p. 2. Because
Dr. Sweeney is not an authorized treating physician, selected from a panel, Tennessee Code
Annotated section 50-6-102(13)(E)(2014) does not afford Dr. Sweeney a presumption of
correctness on the issue of causation. Moreover, Dr. Sweeney's opinion on causation in his
April 28, 2015 letter is not shown within a reasonable degree of medical certainty,
considering all causes, because his chiropractic treatment records do not contain any
reference to the November 25, 2014 incident that occurred at Mr. Backer's home, thereby
confirming Dr. Sweeney's knowledge of the November 25, 2014 incident at home.
In Anderson v. Westfield Grp., 259 S.W.3d 690, 696-97 (Tenn. 2008), cited by Mr.
Backer, the Tennessee Supreme Court discussed the general rule that a subsequent injury,
whether in the form of an aggravation of the original injury or a new and distinct injury, is
compensable if it is the "direct and natural result" of a compensable injury. !d. (quoting
Rogers v. Shaw, 813 S.W.2d 397, 399-400 (Tenn. 1991)). The "direct and natural
consequences" rule is limited, however, when the subsequent injury results from independent
intervening causes, such as the employee's own conduct. Generally, "[w]hen the primary
injury is shown to have arisen out of and in the course of employment, every natural
consequence that flows from the injury likewise arises out of the employment, unless it is the
result of an independent intervening cause attributable to claimant's own intentional
conduct." !d. (quoting 1 Larson's Workers' Compensation Law § 10 (2004) (emphasis
added). More specifically, "the progressive worsening or complication of a work-connected
injury remains compensable so long as the worsening is not shown to have been produced by
an intervening nonindustrial cause." !d. (emphasis added). An employee's intervening
conduct can break the chain of causation necessary to impose liability for a subsequent injury
based on the direct and natural consequences concept. !d.
In this case, the evidence established that a subsequent, intervening incident occurred
on November 25, 2014, when Mr. Backer sneezed several times, reached into a cabinet for
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allergy medication, and felt neck and back pain and his body locked up. Dr. Sweeney's
records failed to demonstrate whether he had knowledge ofthe November 25, 2014 incident
at home. As such, the medical evidence does not address whether the November 25, 2014
incident at home is a "direct and natural consequence" of the original work injury or an
"intervening, nonindustrial cause."
In McCordv. Advantage HumanResourcing, No. 2014-06-0063,2015 TN Wrk Comp
App Bd LEXIS 6 (Tenn. Workers' Comp. App. Bd. March 27, 2015), the Workers'
Compensation Appeals Board held:
Thus, mere notice of an alleged workplace accident, in and of
itself, does not trigger an employer's duty to provide medical
benefits in every case, without regard to the particular
circumstances presented. If an employer chooses to deny the
claim following its initial investigation, the employee must come
forward with sufficient evidence from which the trial court can
determine that the employee likely will prove a compensable
"injury by accident" at a hearing on the merits in accordance
with section 50-6-239(d)(l). Conversely, an employer who
elects to· deny a claim runs the risk that it will be held
responsible for medical benefits obtained from a medical
provider of the employee's choice and/or that it may be subject
to penalties for failure to provide a panel of physicians and/or
benefits in a timely manner.
Id. at* 13.
Azuma denied this claim on January 12, 20 15. Based upon the McCord decision, Mr.
Backer must come forward with sufficient evidence from which the Court may determine
that he will prove a compensable injury by accident at a hearing on the merits. The medical
evidence introduced by Mr. Backer failed to prove a compensable injury by accident because
it failed to address the November 25, 2014 incident at home and failed to address whether
such incident was a "direct and natural consequence" of the original work injury or an
"intervening, nonindustrial cause." Azuma attacked Mr. Brock's credibility on several
issues, including his education, prior criminal record, prior motor vehicle accident and prior
injuries, and his description of the incidents at issue in this case. This Court finds that Mr.
Brock's inconsistent statements on these various issues do not destroy Mr. Brock's credibility
with regard to his version of how the injury occurred. However, this Court finds that Mr.
Backer's testimony concerning the November 25, 2014 incident at home is insufficient to
establish that the incident was a "direct and natural consequence." Accordingly, based upon
the evidence available at this time, this Court concludes that Mr. Backer failed to establish
that he is likely to prevail at a hearing on the merits.
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IT IS, THEREFORE, ORDERED as follows:
1. Mr. Backer's claim against Azuma Leasing and its workers' compensation carrier for
the requested workers' compensation benefits is denied at this time.
2. This matter is set for Initial Hearing on August 19, 2015, at 8:00a.m. central time/
9:00 a.m. eastern time.
ENTERED this the 2nd day of July, 2015.
ELA B. JOHNSON
Court of Workers' Compensation Claims
Initial Hearing:
An Initial Hearing is scheduled for August 19, 20 15, at 8:00 a.m. central time/
9:00 a.m. eastern time, before Judge Pamela B. Johnson, for the Court of Workers'
Compensation Claims. You must call (865) 594-0091 or toll free (855) 543-5041 to
participate in the Initial Hearing.
Please Note: You must call in at the scheduled date and time to participate. Failure to
call in may result in a determination of the issues without your further participation
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order to
appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven (7) business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten ( 10) calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or other
15
delivery service. In the alternative, the appealing party may file an Affidavit of
Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing fee. The
Affidavit oflndigency may be filed contemporaneously with the Notice of Appeal or
must be filed within ten (1 0) calendar days thereafter. The Appeals Board will
consider the Affidavit oflndigency and issue an Order granting or denying the request
for a waiver of the filing fee as soon thereafter as is practicable. Failure to timely
pav the filing fee or file the Affidavit of I ndigency in accordance with this section
shall result in dismissal of the appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal, may
request, from the Court Clerk, the audio recording of the hearing for the purpose of
having a transcript prepared by a licensed court reporter and filing it with the Court
Clerk within ten (10) calendar days of the filing of the Expedited Hearing Notice of
Appeal. Alternatively, the parties may file a statement of the evidence within ten ( 10)
calendar days of the filing of the Expedited Hearing Notice of Appeal. The Judge
must approve the statement of the evidence before the Court Clerk may submit the
record to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appealing party shall file such position statement with the Court Clerk
within three (3) business days of the filing of the Expedited Hearing Notice of
Appeal, specifying the issues presented for review and including any argument in
support thereof. If the appellee elects to file a response in opposition to the
interlocutory appeal, appellee shall do so within three (3) business days of the filing of
the appellant's position statement.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sent
to the following recipients by the following methods of service on this the 2nd day of July,
2015.
Name Certified Via Via Service sent to:
Mail Fax Email
C. Kim Thompson, Esq. X kthom.Qson@tlgnllc.com
L. "Chip" Storey, Jr., Esq. X CSTOREYJ@travelers.com
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