Gupton, Matthew v. Jackson-Hon Gallatin, LLC d/b/a Gallatin Honda

FILED
Aug 10, 2021
09:45 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
MATTHEW GUPTON, ) Docket No. 2020-06-0903
Employee, )
v. ) State File No. 39367-2020
JACKSON-HON GALLATIN, LLC )
d/b/a GALLATIN HONDA, ) Judge Joshua Davis Baker
Employer.
EXPEDITED HEARING ORDER
The Court held an expedited hearing on July 13, 2021, to consider Mr. Gupton’s
request for medical and temporary disability benefits. Gallatin Honda raised several
defenses to these requests including failure to timely report a workplace injury and lack of
medical causation. The Court grants Mr. Gupton’s request for medical benefits, in part,
but at this time denies his request for temporary disability benefits.
Claim History
Mr. Gupton worked for about five years as an auto detailer for BMW of Nashville
before taking a similar position in August 2019 at Gallatin Honda. He worked there for
about nine months. Over that period, Honda hired several more employees, and Mr.
Gupton mainly oversaw their work. After the pandemic began, Honda laid off those
employees, eventually leaving only Mr. Gupton to detail cars.
Mr. Gupton said his workload increased as Honda laid off other detailers. As the
only detailer on staff, he returned to performing more physical labor, including washing,
waxing, vacuuming, cleaning windows, etc. However, even with the increased workload,
he admitted detailing only about four to eight automobiles per week.
Mr. Gupton testified that he injured his shoulders on May 18, 2020, while doing a
“customer detail.” While working around the steering column and the pedals, he felt
immediate onset of pain in both shoulders that “brought tears to [his] eyes,” and he was
unable to move either shoulder. Before his trial testimony, he had never identified a
specific incident that caused his pain.
When the pain began, Mr. Gupton said he went immediately to his supervisor, Eric
Gaskins, and told him he “could not move [his] arm,” and that his condition began while
doing an interior detail. Mr. Gaskins denied that Mr. Gupton came to see him on May 18,
and Mr. Gupton admitted in his deposition that he could have talked with Mr. Gaskins on
May 18, 19, or 20. But he maintained he “told him multiple times my shoulders were
hurting.”
Mr. Gaskins agreed that Mr. Gupton told him many times that his shoulders hurt,
but not until about two months before Mr. Gupton took time off for surgery. Mr. Gaskins
also said he asked Mr. Gupton multiple times whether he hurt his shoulders at work, and
Mr. Gupton said the pain began before he came to work for Honda. He further told Mr.
Gaskins that doing the same type of work over the years had hurt his shoulders, and he hurt
his shoulder when he “pulled something” while working on a jet ski. Mr. Gaskins said Mr.
Gupton never asked to file a workers’ compensation claim but did ask if he could be placed
on layoff for Covid so he could collect unemployment or take leave under FMLA.
Returning to Mr. Gupton’s interactions with Honda, he spoke with human resources
manager Cindy Davis about short-term disability. This conversation occurred about the
time he began treating with Dr. Paul Grutter. He did not tell her that he hurt his shoulders
at work, and he admitted that he never discussed filing a workers’ compensation claim with
either Ms. Davis or his supervisor, Mr. Gaskins. He did, however, eventually seek
treatment under workers’ compensation when he filed a petition for benefit determination
on June 18.
Brandy Hartley, a claims adjuster for Honda’s workers’ compensation carrier,
testified about her difficulty in completing an investigation after Mr. Gupton filed his
petition. She attempted unsuccessfully to obtain a statement from him. So, Mr. Gupton
never received a panel of physicians, and Ms. Hartley eventually denied the claim because
she could not verify necessary information.
Before he filed his petition and Ms. Hartley began her investigation, Mr. Gupton
started treating with Dr. Grutter. At their first appointment on June 9, 2019, he told Dr.
Grutter he hurt his shoulders detailing cars at work, but he never mentioned a specific
incident. Also, in a new patient form, Mr. Gupton wrote that he had been experiencing
shoulder pain and soreness for one and a half years. Dr. Grutter operated on Mr. Gupton’s
right shoulder on June 24 and ordered physical therapy.
Unfortunately, Mr. Gupton reinjured his right shoulder about four weeks after his
first surgery while assisting a relative who had fallen from her wheelchair. The reinjury
required Dr. Grutter to perform a second surgery.
Medical records Honda presented in its defense showed that Mr. Gupton had a
history of problems with his shoulders dating back several years. A medical note from
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2018 stated he had “possible rotator cuff pathology.” A record from 2019 also said he had
impingement syndrome in his right shoulder and pain in his left shoulder. He also sought
pain treatment for his shoulders over several years.
Counsel for Honda presented Dr. Grutter with these medical records at his
deposition. Dr. Grutter admitted it was “possible” that Mr. Gupton had the shoulder
problems prompting his surgery before he came to work for Honda. He also “could not
definitively say when he had a rotator cuff tear.” However, he did say that Mr. Gupton’s
shoulder injuries “became disabling for him while he was employed, you know, whatever
date that was.”
In the end Dr. Grutter testified consistently with his affidavit testimony, which said,
“he’s been employed full time detailing automobiles and involving heavy use of his arms
and shoulders throughout the workday. On May 18, 2020, he experienced such severe pain
in both shoulders as a result of his employment duties, that he sought medical treatment.
Mr. Gupton had been overusing his shoulders for approximately 1.5 years.”
Findings of Fact and Conclusions of Law
Mr. Gupton need only present sufficient evidence at this stage that he is likely to
prevail at a final hearing. See Tenn. Code Ann. § 50-6-239(d)(1) (2020); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27,
2015).
Honda raised notice as a defense, so the Court will address it first. Tennessee Code
Annotated section 50-6-201 discusses notice. Because Dr. Grutter diagnosed Mr. Gupton
with a gradual condition, Mr. Gupton was required to provide notice within fifteen days of
whenever he was “rendered unable to continue to perform the employee’s normal work
activities as the result of the work-related injury and the employee knows or reasonably
should know that the injury was caused by work-related activities.” Id. at § 50-6-201(b)(2).
The Court finds Mr. Gupton did not know this until after he first saw Dr. Grutter on
June 9, 2019. Nine days later, he filed a petition for benefit determination seeking
treatment. This was well within the fifteen-day notice period. The Court finds Honda’s
notice defense unpersuasive.
Turning to the substantive issues of Mr. Gupton’s claim, the Court first examines
whether Mr. Gupton suffered an injury at all. Under Workers’ Compensation Law, Mr.
Gupton must prove he suffered an injury caused by a specific incident or set of incidents
arising “primarily out of and in the course and scope of employment,” which means the
employment contributed more than fifty percent in causing the injury, considering all
causes. Tenn. Code Ann. § 50-6-102(14)(A)-(B).
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Here, the Court finds that Mr. Gupton’s testimony about the overuse of his arms
while detailing cars over several years was sufficient to carry his burden of proof. Although
he did not detail a specific event until the day of the trial, the Court finds that his testimony
about the waxing, cleaning, and washing cars resulted in cumulative injury that became
disabling while he worked for Honda.
The Court further finds the medical evidence supports Mr. Gupton’s injury was
caused by his work for Honda. An injury is work-related when “the employment
contributed more than fifty percent (50%) in causing the injury, considering all causes.”
Tenn. Code Ann. § 50-6-102(14)(B). An employee must present expert medical proof that
an alleged injury is causally related to employment when the case is not “obvious, simple
[or] routine.” Willis v. All Staff, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *27 (Nov.
9, 2015).
While somewhat less than definitive on how Mr. Gupton incurred bilateral shoulder
injuries, Dr. Grutter’s testimony was sufficient to show that his injuries resulted from years
of overuse and became disabling while working for Honda. Dr. Grutter admitted it was
“possible” that Mr. Gupton had the shoulder problems before he came to work for Honda
and “could not definitively say when he had a rotator cuff tear.” However, causation
opinions cannot be based on “speculation or possibility.” See Tenn. Code Ann. § 50-6-
102(14)(D). Further, Dr. Grutter did say that Mr. Gupton’s shoulder injuries “became
disabling for him while he was employed, you know, whatever date that was.” His affidavit
said, “he’s been employed full time detailing automobiles and involving heavy use of his
arms and shoulders throughout the workday. On May 18, 2020, he experienced such severe
pain in both shoulders as a result of his employment duties, that he sought medical
treatment. Mr. Gupton had been overusing his ·shoulders for approximately 1.5 years.”
Based on this testimony, the Court finds Mr. Gupton would likely prevail at a hearing on
the merits in his claim for medical treatment for his shoulder injuries.
In view of the above decision, Honda must provide Mr. Gupton treatment for his
injuries, as the Worker’s Compensation Law requires an employer to “furnish, free of
charge to the employee, such medical and surgical treatment . . . made reasonably necessary
by accident as defined in this chapter.” Tenn. Code Ann. § 50-6-204(a)(1)(A). The Court
holds that Mr. Gupton’s need for treatment for both shoulders arose from his work but
limits that treatment to his left shoulder only.
When an injury requires medical care, an employer is obligated to “designate a
group of three (3) or more . . . physicians . . . from which the injured employee shall select
one to be the treating physician.” Id. at § 50-6-204(a)(3)(A)(i). Here, Mr. Gupton
prevented Honda from providing a timely panel when he failed to report his injury as a
workers’ compensation claim before scheduling his surgery with Dr. Grutter, and having
that surgery less than a week after filing his petition for benefit determination. Further, he
reinjured his right shoulder after that operation in a non-work-related event. So, the Court
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holds that Honda is not responsible for any of the treatment Mr. Gupton received for his
right shoulder. Honda must, however, provide Mr. Gupton a panel of orthopedic specialists
for his left shoulder.
The Court finds Mr. Gupton has not carried his burden of proof to receive temporary
total disability benefits. To recover, he needed to prove (1) he is totally disabled and unable
to work due to a compensable injury, (2) the work injury and inability to work are causally
connected, and (3) the duration of the disability to recover benefits. Jewell v. Cobble
Constr. and Arcus Restoration, 2015 TN Wrk. Comp. App. Bd. LEXIS 1, at *21 (Jan. 12,
2015). Here, Mr. Gupton’s time off work stemmed only from his right shoulder injury for
which he is not entitled to benefits. Therefore, he is unlikely to prevail a hearing on the
merits in proving entitlement to these benefits. Should Mr. Gupton be taken off work for
his left-shoulder surgery, he may file a claim for those benefits if necessary.
IT IS ORDERED as follows:
1. Honda shall provide Mr. Gupton a panel of physicians for treatment of his left
shoulder.
2. The Court, at this time, denies Mr. Gupton’s request for treatment for his right
shoulder and for temporary disability benefits.
3. The Court sets a status conference on October 11, 2021, at 10:00 a.m. (CDT).
The parties must call (615) 741-2113 or toll-free at (855) 874-0474 to participate.
Failure to call might result in a determination of the issues without the party’s
participation.
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). The
Insurer or Self-Insured 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. For questions regarding compliance, please contact the Workers’
Compensation Compliance Unit by email at WCCompliance.Program@tn.gov.
ENTERED AUGUST 10, 2021.
____________________________________
Judge Joshua Davis Baker
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits:
1. Medical records
2. Affidavit of Matthew Gupton
3. First Report of Injury completed by Cindy Davis Downey
4. Statement of Eric Gaskins
5. Statement of Cindy Davis Downey
6. First Report of Injury completed by Brandy Hartley
7. Letter from BWC dated June 26, 2019
8. Panel of Physicians
9. Amended Wage Statement
10. Application for unemployment benefits submitted April 6, 2020
11. Qualifying Separation Determination Letter mailed April 9, 2020
12. Text message between Reed Koehler, Eric Gaskins, and Matthew Gupton
dated May 25, 2020
13. Text messages between Eric Gaskins and Matthew Gupton from May 25,
2020, to June 17, 2020 (collective exhibit)
14. Emails between Michael McGee and Brandy Hartley from June 19, 2020, to
July 14, 2020 (collective exhibit)
15. Deposition of Dr. Paul Grutter, including attached exhibits
16. Notice of claim denial
17. Follow-up evaluation medical record 8/29/2017
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Honda’s Brief
5. Mr. Gupton’s Brief
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on August 10, 2021.
Name Standard Via Via Addresses
Mail Fax Email
Dave Rich, X Dave.rich@hdlawoffice.com
Employee’s Attorney
Jennifer Orr, X Jennifer.orr@farrar-bates.com
Employer’s Attorney Rebecca.moore@farrar-bates.com
______________________________________
Penny Shrum, Court Clerk
Wc.courtclerk@tn.gov
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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:
________________________________________________________________________________________
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________________________________________________________________________________________
________________________________________________________________________________________
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