                                                                                 FILED
                                                                               Apr 26, 2019
                                                                               12:04 PM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                           AT NASHVILLE

JASON DZIADOSZ,                             )
         Employee,                          )
v.                                          )   Docket No. 2018-06-1641
WHITESTONE INVESTMENTS,                     )
INC.,                                       )
         Employer,                          )   State File No. 69336-2018
and                                         )
                                            )
HANOVER INSURANCE CO.,                      )   Judge Joshua Davis Baker
                                            )
             Carrier.                       )


          EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS.


       The Court convened an expedited hearing on April 11, 2019, to consider Mr.
Dziadosz’s request for temporary disability and medical benefits for a left-hand injury.
The Court grants his request for medical benefits but denies his request for temporary
disability benefits.

                                    Claim History

        Mr. Dziadosz worked in shipping and receiving for Whitestone Investments, Inc.
(Outland), a supplier of camping and outdoor equipment, when he began experiencing
flu-like symptoms. He missed several days of work and then went to Vanderbilt Health
on September 1, 2018. While there, Mr. Dziadosz complained of left-hand pain,
specifically his left index finger. Vanderbilt took three x-rays and found no acute
problems.

      Mr. Dziadosz went that same day to a Physician’s Urgent Care center where he
saw Gary Nardin, a physician’s assistant. Mr. Nardin determined he had an “overuse
syndrome and will most likely continue if he stays at this job.” Mr. Nardin provided him
pain medication and prednisone.

                                           1
       Mr. Dziadosz returned to Outland on September 4 and informed the warehouse
lead, Dylan Yeager, that he hurt his hand at work. According to his affidavit, Mr.
Dziadosz took the following day off with permission from Mr. Yeager to rest his hand
but came to work for a staff meeting. After he arrived home from the staff meeting, Mr.
Yeager left him a message informing him he had been fired. Matthew Chilvers, the
owner of Outland, told Mr. Dziadosz he fired him due to excessive, unexcused absences.

       After his termination, Mr. Dziadosz returned to Mr. Nardin, who diagnosed
tendinitis and attributed it to his work:

       In my professional opinion the engagement in the work that he was doing at
       the distribution center accounted for 50% or more of the cause for his
       tendinitis. Patient is 75% improved and will hopefully be 100% improved
       with PT. At this time I do not see that the patient has any restrictions for
       his engagement in gainful employment.

       Soon after his visit with Mr. Nardin, Mr. Dizadosz received a panel of physicians
and selected Dr. David Alexander. Dr. Alexander ultimately diagnosed Mr. Dziadosz
with tenosynovitis of the hand, wrist and forearm and took him off work for a total of two
weeks, for which Mr. Dziadosz received temporary-total disability benefits. In his
medical notes, Dr. Alexander imposed restrictions and indicated Mr. Dziadosz could
“Return to Light Duty work on 11-07-2018” and return as needed. Dr. Alexander wrote,
“I have examined this patient and do not feel that he will retain any partial permanent
impairment as a result of this work-related claim.” He later revised this note and placed
Mr. Dziadosz at maximum medical improvement (MMI) as of November 7. Dr.
Alexander indicated he needed no further medical treatment.

       After being placed at MMI, Mr. Dziadosz contacted the insurance adjuster to
schedule a return appointment. The insurance adjuster sent an email to Dr. Alexander’s
assistant asking if the doctor would see Mr. Dziadosz again. A printed copy of the email
contains two boxes, one next to the word “yes” and the other next to the word “no.” The
“no” box contains a check-mark. After receiving this opinion, Outland filed a notice of
controversy and declined to provide further treatment.

        As he continued to have problems with his hand, Mr. Dziadosz visited Dr. Todd
Wurth, an orthopedic surgeon, on January 29, 2019. Dr. Wurth diagnosed left index
trigger finger and gave him a steroid shot. If the shot failed to relieve the condition, Dr.
Wurth recommended A-1 pulley-release surgery. He did not impose any work
restrictions. Mr. Dziadosz paid $250 out-of-pocket for the visit.




                                             2
                       Findings of Fact and Conclusions of Law

       To prevail at an expedited hearing, Mr. Dziadosz must present sufficient evidence
to prove he would likely prevail at a final hearing in his claim for temporary disability
and medical benefits. See Tenn. Code Ann. § 50-6-239(d)(1) (2018); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-9 (Mar.
27, 2015).

       Mr. Dziadosz must have suffered either an acute or a gradual injury as defined by
the Workers’ Compensation Law. Under the law, an “injury” means “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[.]” The
injury, whether acute or gradual, must be caused “by a specific incident, or set of
incidents, arising primarily out of and in the course and scope of employment.” “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[.]” See Tenn. Code
Ann. § 50-6-102(14).

       Mr. Dziadosz testified he began having hand pain while working for Outland. He
gave the same history to his medical providers. While Mr. Yeager testified that the work
was not strenuous and questioned the repetitive nature of it, Dr. Alexander agreed that
Mr. Dziadosz’s pain stemmed from warehouse work. Thus, the Court holds Mr.
Dziadosz would likely prevail in proving he suffered an incident or set of incidents
arising primarily out of and in the course and scope of his employment that caused the
need for treatment. The remaining question is whether the work caused his need for
further medical treatment. The Court finds that it did.

       Mr. Dziadosz seeks additional treatment for his hand. Under the Workers’
Compensation Law, the employer “shall 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). Outland initially provided this
treatment with Dr. Alexander, who treated Mr. Dziadosz and released him at MMI.

        Although Dr. Alexander determined Mr. Dziadosz suffered no permanent
impairment, his medical notes indicated Mr. Dziadosz could return as needed. Mr.
Dziadosz continued to suffer pain and requested additional care, and his own assessment
of his physical and disability is competent testimony. See Cleek v. Wal-Mart Stores, Inc.,
19 S.W.3d 770, 774 (Tenn. 2000). Despite Mr. Dziadosz’s right to continued reasonable
and necessary care, Dr. Alexander declined to treat him, and Outland controverted the
claim.


                                            3
       Left without authorized medical care, Mr. Dziadosz sought treatment on his own
from Dr. Wurth and incurred costs. Dr. Wurth affirmed the diagnosis of tenosynovitis,
gave him a steroid injection for his pain, and discussed possible surgical intervention if
necessary. The Court finds Mr. Dziadosz’s actions were reasonable. He would likely
prevail at a hearing on the merits in proving entitlement to further medical treatment, as
the condition Dr. Wurth treated was the same condition he suffered at work and Dr.
Alexander refused to see him. The Court designates Dr. Wurth as the authorized treating
physician and orders Outland to pay for any future reasonable and necessary medical care
he provides to Mr. Dziadosz. See Barrett v. Lithko Contracting, Inc. et al., 2016 TN
Wrk. Comp. App. Bd. LEXIS 93, at *8 (Dec. 8, 2016) (An employer runs the risk of
having to pay for unauthorized treatment if a court later determines that the treatment was
reasonable and necessary.). In addition, Outland must pay Mr. Dziadosz the $250.00 he
spent for treatment with Dr. Wurth.

       In addition to his medical treatment request, Mr. Dziadosz requested additional
temporary disability benefits. To establish entitlement to temporary total disability
benefits, Mr. Dziadosz must show: his injury disabled him from working; a causal
connection exists between his injury and inability to work; and the duration of his
disability. Jones v. Crencor, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11,
2015). Compensation for temporary partial disability is sixty-six and two-thirds percent
of the “difference between the average weekly wage of the worker at the time of the
injury and the wage the worker [earns] in the worker’s partially disabled condition.”
Tenn. Code Ann. § 50-6-207(2). Because no doctor has taken Mr. Dziadosz off work or
imposed any workplace restrictions other than for the two-week period for which he
received temporary-total disability benefits, the Court cannot award these benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. Outland shall provide Mr. Dziadosz medical care with the authorized treating
      physician, Dr. Todd Wurth.

   2. Outland shall pay Mr. Dziadosz $250.00 for his payment for treatment with Dr.
      Wurth.

   3. Mr. Dziadosz’s request for temporary disability benefits is denied at this time.

   4. This matter is set for Status Conference on June 24, 2019, at 9:00 a.m. (CDT).
      The parties must call (615) 741-2113 or (855) 874-0474 to participate.

   5. 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

                                            4
     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.


ENTERED APRIL 26, 2019.



                                 _____________________________________
                                 Judge Joshua Davis Baker
                                 Court of Workers’ Compensation Claims




                                          5
                                         INDEX

Exhibits:

   1. Medical Records
   2. Mr. Dziadosz’s Affidavit
   3. Choice of Physician Form
   4. Notice of Controversy
   5. Ms. Sanders-Hardin’s Affidavit (last paragraph not admissible)
   6. Medical Care Receipts
   7. Text Messages
   8. Employee Handbook
   9. Email
   10. Return to Work Note

Technical Record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Expedited Hearing
   4.   Mr. Dziadosz’s Pretrial Brief
   5.   Outland’s Pretrial Brief




                                             6
                          CERTIFICATE OF SERVICE

       I certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on April 26, 2019.

Name                     Certified   First        Via Service sent to:
                          Mail       Class       Email
                                     Mail
Jason Dziadosz,                                    x    jasondziadosz@gmail.com
Employee
Tyler D. Smith,                                    x    tsmith@lewisthomason.com
Employer’s Attorney



                                       ______________________________________
                                       PENNY SHRUM, COURT CLERK
                                       wc.courtclerk@tn.gov




                                             7
                           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.
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-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, I 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. I am 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. I 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 Camp.$              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




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
