     FILED
   Mar 04, 2020
   09:35 AM(CT)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
and went to his next assignment. About that time, his supervisor, Adam Gruszka, called
to check on the status of the first job. Mr. Sutton told Mr. Gruszka that he had fallen and
would not be able to finish the installation that day but did not request medical treatment
or a formal report of injury. Mr. Gruszka told him to finish the second job and go home.

       The next day was Mr. Sutton’s day off. He planned to discuss his injury further
with Mr. Gruszka when he returned on Friday morning. When he arrived at work that
day, Mr. Gruszka called Mr. Sutton into a meeting with Blair Ceplo, the union
representative. Mr. Gruszka asked why Mr. Sutton had not completed the job on
Wednesday, and Mr. Sutton reminded him of the injury they discussed on the phone.

       After the meeting, Mr. Sutton went out for a service call. He was still on that job
when Mr. Gruszka called and asked how he was feeling. Mr. Sutton said he was still
hurting and his fingers were numb, and Mr. Gruszka told him to return to the shop.
When Mr. Sutton arrived, Mr. Gruszka placed him on paid leave for an investigation into
why he failed to finish the job on Wednesday.

      Mr. Sutton continued to have symptoms, so he requested medical treatment on
March 6. AT&T provided a panel, and he selected American Family Care (AFC). Mr.
Sutton had two appointments with AFC, where the doctors prescribed medication and
physical therapy for complaints of right shoulder and neck pain.

       AT&T denied the claim on March 20 on the grounds that Mr. Sutton failed to
“give proper written notice within 15 days of the alleged accident.” Mr. Sutton then
sought treatment with his own doctors. He said they have recommended cervical disc
surgery, but he cannot afford it.

      Ms. Ceplo testified about the February 15 meeting with Mr. Sutton and Mr.
Gruszka. She confirmed that Mr. Sutton said he didn’t finish the job on the 13th because
he had hurt his shoulder, but she did not recall whether he said the injury occurred at
work.

      Mr. Sutton requested that the Court order AT&T to provide medical treatment
from AFC, his original panel physicians.

       AT&T contended that Mr. Sutton is not entitled to benefits for two reasons. First,
it argued he failed to provide timely notice of any February 13 injury until his request for
treatment on March 6. Second, it argued Mr. Sutton did not present evidence that he
would likely establish an injury that arose primarily out of and in the course and scope of
his employment. In that regard, AT&T suggested Mr. Sutton’s medical history raised
questions about whether the injury occurred at work.



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                           Findings of Fact and Conclusions of Law

      Mr. Sutton must provide sufficient evidence from which this Court might
determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

                                          Notice

       Tennessee Code Annotated section 50-6-201(a)(1) requires that an injured
employee give written notice of an injury within fifteen days unless it can be shown that
the employer had actual knowledge of the injury or that the employee had a reasonable
excuse for any failure to provide notice. Further, Tennessee Code Annotated section 50-
6-201(a)(3) provides that failure to give notice will not bar a claim unless the employer
can show it was prejudiced by the lack of notice. Prejudice may be found if the employer
is denied the opportunity to make an investigation while the facts are accessible or to
provide timely and proper treatment for the injured employee. See Masters v. Indus.
Garments Mfg. Co., 595 S.W.2d 811, 815 (Tenn. 1980).

       AT&T contended that Mr. Sutton failed to provide proper notice of his February
13 injury because he did not report the injury or request medical treatment until March 6.
This argument is unpersuasive, as it ignores Mr. Sutton’s testimony that he reported the
injury on the phone to Mr. Gruszka the day it occurred, as well as two days later. AT&T
put on no proof to rebut that testimony. Therefore, the Court finds that AT&T had actual
knowledge of the incident.

        Further, even if AT&T had no knowledge of Mr. Sutton’s work injury until six
days after the expiration of the notice period, it presented no evidence of prejudice to its
ability to defend this claim or provide proper medical treatment. For these reasons, the
Court holds Mr. Sutton is likely to prevail at a hearing on the merits on notice.

                                     Compensability

       To prove a compensable injury, Mr. Sutton must show that his alleged injuries
arose primarily out of and in the course and scope of his employment. This includes the
requirement that he must establish a work-related incident identifiable by time and place
of occurrence. Tenn. Code Ann. § 50-6-102(14)(A). Further, he must show, “to a
reasonable degree of medical certainty that [the incident] contributed more than fifty
percent (50%) in causing the . . . disablement or need for medical treatment, considering
all causes.” “Shown to a reasonable degree of medical certainty” means that, in the
opinion of the treating physician, it is more likely than not considering all causes as
opposed to speculation or possibility. See Tenn. Code Ann. § 50-6-102(14).


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       Applying these principles to the facts of this case, the Court first notes that Mr.
Sutton described a specific, work-related incident: he injured his neck and shoulder when
he slipped while carrying a ladder at work. AT&T questioned whether the injury actually
occurred as Mr. Sutton claimed. However, it put on no proof suggesting that Mr.
Sutton’s accident did not happen or identifying any other cause of his injury. Further, the
Court observed Mr. Sutton and found his testimony to be steady, consistent, unequivocal,
and credible. Therefore, the Court holds Mr. Sutton demonstrated he is likely to establish
a specific incident, identifiable by time and place, at a hearing on the merits.

       The question then is whether Mr. Sutton is likely to prove at a hearing on the
merits that his work primarily caused the injury. The parties introduced a few medical
records into evidence, but none of those records contains a medical opinion addressing
the cause of Mr. Sutton’s shoulder or neck complaints. Absent this opinion, he has not
proven “to a reasonable degree of medical certainty” that his work “contributed more
than fifty percent (50%) in causing the . . . disablement or need for medical treatment,
considering all causes.”

       However, where an employee comes forward with sufficient evidence to support
that a work event resulted in injury, that evidence may support an order compelling an
employer to provide treatment with the panel doctor. See Lewis v. Molly Maid, 2016 TN
Wrk. Comp. App. Bd. LEXIS 19, at *8-9 (Apr. 20, 2016). Thus, the question is whether
Mr. Sutton provided sufficient evidence to satisfy his burden at this interlocutory stage
that he is entitled to return to his panel physicians.

       AT&T suggested that Mr. Sutton suffered from a preexisting condition but
presented no evidence to support this argument. Even if it had some factual basis for this
position, those facts would not excuse AT&T from its statutory duty to provide medical
treatment once it received notice of a work injury. The Court is constrained to the record
before it because “judges, like lawyers, are poorly positioned to formulate expert medical
opinions.” Love v. Delta Faucet Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 45, at *15-
16 (Sept. 19, 2016). Similarly, parties cannot rely solely on their own medical
interpretations to support their arguments. Lurz v. Int’l Paper Co., 2018 TN Wrk. Comp.
App. Bd. LEXIS 8, at *17 (Feb. 14, 2018).

        Therefore, the Court holds Mr. Sutton provided sufficient evidence to satisfy his
burden at this interlocutory stage that he is entitled to return to his panel physicians.
AT&T shall authorize a return visit to AFC for evaluation and, if appropriate, treatment
of his alleged injuries under Tennessee Code Annotated section 50-6-204(a)(1)(A).

IT IS, THEREFORE, ORDERED as follows:




                                            4
   1. AT&T shall provide Mr. Sutton with medical treatment made reasonably
      necessary by his February 13, 2019 injury. American Family Care shall be the
      authorized treating provider.

   2. This case is set for a Scheduling Hearing on May 28, 2020, at 9:00 a.m. You must
      call toll-free at 855-874-0473 to participate. Failure to call might result in a
      determination of the issues without your further participation. All conferences are
      set using Central Time.

   3. 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 might result in a penalty
      assessment for non-compliance. For questions regarding compliance, please
      contact the Workers’ Compensation Compliance Unit via email at
      WCCompliance.Program@tn.gov.

      ENTERED March 4, 2020.



                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims




                                      APPENDIX

Exhibits:
   1. Affidavit of J.J. Sutton
   2. Notice of Denial of Claim
   3. Records from Maury Regional Medical Center
   4. February 28, 2019 medical record of Teresa Pisani, PA
   5. AFC Work Comp reports
   6. Copies of texts between J.J. Sutton and Adam Gruszka
   7. Blair Ceplo’s February 15, 2019 meeting notes



                                            5
Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. AT&T’s Response to Request for Expedited Hearing


                          CERTIFICATE OF SERVICE

      I certify that a copy of the Expedited Hearing Order was sent as indicated on
March ___, 2020.

  Name                   Certified    Via       Service Sent To
                         Mail         Email
  Richard Matthews,                      X      Richard@mattewsinjurylaw.com
  Employee’s Attorney
  Kristen Stevenson,                     X      kcstevenson@mijs.com
  Employer’s Attorney



                                      _____________________________________
                                      Penny Shrum, Clerk of Court
                                      Court of Workers’ Compensation Claims
                                      WC.CourtClerk@tn.gov




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