Fannon, Jerry v. Ron's Millwright Service, Inc.

FILED
May 17, 2016
TN COURT OF
WORKERS* COMPENSATION
CLAIMS
Time: 11:00 AM
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KINGSPORT
Jerry Fannon ) Docket No.: 2016-02-0037
Employee, )
V. ) State File Number: 3253-2016
Ron’s Millwright Service, Inc. )
Employer, ) Judge Brian K. Addington
And )
FCCI Insurance Co. )
Insurance Carrier. )
)
ORDER DENYING REQUESTED TEMPORARY DISABILITY
AND MEDICAL BENEFITS
This matter came before the undersigned Workers’ Compensation Judge on the
Request for Expedited Hearing filed by the employee, Jerry Fannon, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is the
compensability of the employee’s work injury, which he allegedly sustained while lifting
a heavy steel propane tank. The central legal issue is whether the employee provided
sufficient information to establish an injury compensable under the Tennessee Workers’
Compensation Law.! For the reasons set forth below, the Court finds Mr. Fannon did not
establish the compensability of the alleged injury and denies the requested relief at this
time.
History of Claim
Employee, Jerry Fannon, is a sixty-seven-year-old resident of Greene County,
Tennessee. (T.R. 1 at 1.) He testified he is retired and receives “old-age” Social Security
benefits. Ron’s Millwright Service, Inc. hired Mr. Fannon in December 2015 to work as a
part-time truck driver. (Coll. Ex. 2 at 4.)” Given the part-time nature of his employment,
' Additional information regarding the technical record and exhibits admitted at the Expedited Hearing is attached to
this Order as an Appendix.
Millwright introduced three unsworn written statements into evidence as Collective Exhibit 2. The statements were
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Mr. Fannon did not begin working for Millwright until January 4, 2016. Jd. According to
Mr. Fannon’s testimony, during his first day on the job, a mechanic named Howard
Bradford asked him to move a steel propane tank. (See also Coll. Ex. 2 at 1.) Mr. Fannon
described the tank as weighing approximately 150 pounds. He lifted and carried the tank
about 200 feet into the warehouse and claimed he “strained all my muscles and my
joints” as a result. (Ex. 1 at 1.) According to Mr. Bradford, Mr. Fannon lifted the tank
with no trouble. (Coll. Ex. 2 at 1.)
Mr. Fannon returned to work the next day without incident. Mr. Bradford filed a
written statement confirming he worked with Mr. Fannon the day after the injury and that
Mr. Fannon worked normally, making no mention of an injury. (Coll. Ex. 2 at 2.)
However, Mr. Fannon testified that, later that evening, he began to feel pain in his
muscles and joints.
Shortly thereafter, J.C. Wampler, the shop foreman, telephoned Mr. Fannon to see
if he wanted to work. (Coll. Ex. 2 at 7.) Mr. Fannon testified he told Mr. Wampler he was
sore and that while he was not sure, he thought lifting the propane tank caused his
condition. Jd. According to Mr. Fannon, Mr. Wampler asked him to come in, complete an
injury report, and go to an approved clinic, Industricare, for treatment. Mr. Fannon did
so. Millwright denied the claim thereafter. Mr. Fannon testified he attempted to treat
with his personal physician, but his doctor refused to see him under his private insurance
when he claimed a work injury. According to Mr. Fannon, he has not worked since his
last day at Millwright.
Mr. Fannon filed a Petition for Benefit Determination seeking additional medical
and temporary disability benefits on January 27, 2016. (T.R. 1 at 1.) The parties did not
resolve the disputed issues through mediation, and the Mediating Specialist filed a
Dispute Certification Notice. (T.R. 2.) On March 30, 2016, Mr. Fannon filed a Request
for Expedited Hearing. (T.R. 3.) This Court heard the matter on May 12, 2016.
At the Expedited Hearing, Mr. Fannon asserted that he strained his whole body,
generally, as a result of lifting the propane tank. While he questioned whether any
additional medical treatment would help him at this point, he thought a chiropractor could
help his balance problems. He asserted Millwright should be responsible for “off-work
benefits” and medical treatment. Millwright countered that Mr. Fannon failed to carry his
burden to establish an injury by accident, in accordance with Tennessee Code Annotated
section 50-6-102(14)(A) (2015). It also asserted Mr. Fannon failed to present sufficient
made by Howard Bradford, a mechanic who worked with Mr. Fannon; Brett Purgason, Millwright’s Building
Division Manager; and J. W. Wampler, Millwright’s shop foreman. The Court presented the statements to Mr.
Fannon, who advised he had no objection to their admission into evidence.
* The parties did not admit the medical record of the Industricare visit into evidence. Since a party supplied the
Industricare record prior to the hearing, the Court specifically asked Mr. Fannon if he wished to introduce it as an
exhibit. Mr. Fannon replied in the negative.
to
evidence from which the Court could determine that he is likely to prevail at a trial on the
merits.
Findings of Facts and Conclusions of Law
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 (2014).Mr. Fannon, in this workers’
compensation claim, has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass’n, 725 8.W.2d 935, 937 (Tenn. 1987); Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers’ Comp. App. Bd. Aug. 18, 2015).
Mr. Fannon need not prove every element of his claim by a preponderance of the
evidence in order to obtain relief at an expedited hearing. McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). However, at an expedited hearing, he
has the burden to come forward with sufficient evidence from which the trial court can
determine that the employee is likely to prevail at a hearing on the merits. Jd.
To be compensable under the workers’ compensation statutes, an injury must arise
primarily out of and occur in the course and scope of the employment. Tenn. Code Ann.
§ 50-6-102(14) (2015). “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.” Tenn. Code Ann. § 50-6-102(14)(B) (2015). Furthermore, “other than in the
most obvious cases, an employee must establish by expert medical evidence the causal
relationship between the claimed injury and the employment activity.” Orman vy.
Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991)(emphasis added).
At the Expedited Hearing, Mr. Fannon was not specific about the nature of his
claimed injury. He suggested the muscles and joints in his whole body ached, but offered
no further clarification about the nature and extent of his claimed injury. Without
knowing the nature of his injury, it cannot be said that his claim constitutes an “obvious
case.” As a result, expert medical evidence is required to prove causation. Mr. Fannon
offered no expert medical evidence to establish that he sustained an injury as the result of
his work activity on January 4, 2016. He provided no evidence to establish his work
activity “contributed more than fifty percent in causing the injury, considering all
causes,” as the above-referenced statute requires. By Mr. Fannon’s own
acknowledgement, Millwright paid for him to be seen at one of its approved medical
facilities, Industricare, when he reported the injury. The Court declines to order a panel of
physicians.
Considering all the evidence, including the other Millwright employees’
statements, the evidence does not support a finding that Mr. Fannon has come forward
with sufficient evidence from which the Court could conclude he is likely to prevail at a
hearing on the merits. His requests for additional medical benefits and temporary
disability benefits are denied at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Fannon’s claim against Millwright and its workers’ compensation carrier for
the requested additional medical benefits and temporary disability benefits is
denied.
2. This matter is set for an Initial (Scheduling) Hearing on June 28, 2016, at 11:00
a.m. Eastern.
ENTERED this the 17" day of May, 2016.
rec Aap
Judge Brian K. Addington LY
Court of Workers’ Compensation Claims
Initial (Scheduling) Hearing:
A Scheduling Hearing has been set with Judge Brian K. Addington, Court of
Workers’ Compensation Claims. You must call toll-free at 855-543-5044 to
participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Eastern Time (ET).
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.”
. File the completed form with the Court Clerk within seven business days of the
date the Workers’ Compensation Judge entered the Expedited Hearing Order.
. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten 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 delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, secking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency 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 pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
. 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 calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers’ Compensation
Claims and must be approved by the workers’ compensation judge before the
record is submitted to the Clerk of the Appeals Board.
. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing of the appellant’s
position statement. All position statements pertaining to an appeal of an
interlocutory order 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.
APPENDIX
Exhibits:
1. Affidavit of Jerry Fannon, March 30, 2016;
2. (Collective) Declarations of Howard Bradford, Brett Purgason, and J.C. Wampler;
and,
3. Wage Statement, February 5, 2016.
Technical record:'
Petition for Benefit Determination, January 27, 2016;
Dispute Certification Notice, filed February 23, 2016;
Request for Expedited Hearing, March 30, 2016;
Email of defense position from Millwright’s attorney, February 10, 2016;
Millwright’s objection to the DCN, February 18, 2016;
Millwright’s Pre-Hearing Brief, April 28, 2016.
AM PWNS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 17"
day of May, 2016.
Name Certified Mail | Via Email | Service Sent To:
Jerry Fannon x 2885 N. Wesley Chapel R.
Greeneville, TN 37745
J. White, Esq. Xx jennifer. white@petersonwhite.com
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‘ Z. “ LY Fi Fa
_ Sin XM
Penny Shtum, Court Clerk
Court of\ Workers’ Compensation Claims
WC.CourtClerk(aitn.gov
* 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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