            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Edward Richards                           )     Docket No. 2016-01-0212
                                          )
v.                                        )     State File No. 11422-2015
                                          )
Kiewit Power Constructors Company, et al. )
                                          )
                                          )
Appeal from the Court of Workers’         )
Compensation Claims                       )
Audrey A. Headrick, Judge                 )


                  Affirmed and Remanded—Filed December 9, 2016


The employee in this interlocutory appeal suffered multiple hernias in the course and
scope of his employment while working for the employer as an electrician. The
employer provided medical and temporary disability benefits. After going to work for
another employer, the employee experienced a recurrent hernia that he asserted was
causally related to the prior hernias. The employer denied the claim on the basis that the
recurrent hernia was caused by an intervening event and that the last injurious exposure
rule should place liability for that injury on the subsequent employer. The trial court
ruled that the recurrent hernia was the direct and natural consequence of the first injury
and ordered the employer to provide medical benefits. The trial court denied the
employee’s request for temporary disability benefits. The employer has appealed. We
affirm the trial court’s decision and remand the case.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley and Judge Timothy W. Conner joined.

Mary Dee Allen, Cookeville, Tennessee, for the employer-appellant, Kiewit Power
Constructors Company

Edward Richards, Candler, North Carolina, employee-appellee, pro se




                                            1
                          Factual and Procedural Background

       Edward Richards (“Employee”), an electrician, was working for Kiewit Power
Constructors Company (“Employer”), a construction and engineering firm, when he lifted
heavy wire and felt pain in his stomach on February 15, 2015. Shortly afterward, he
noticed a knot in the same location and reported the injury to Employer. He saw Dr.
Donna VanSchuyver the same day and was diagnosed with abdominal pain, a palpable
mass, and an abdominal hernia. An abdominal ultrasound confirmed multiple hernias,
and Dr. VanSchuyver referred Employee to a surgeon.

       Employer provided Employee with a panel of surgeons from which he chose Dr.
Claudine Siegert, who recommended surgery to repair the hernias. The surgery was
performed and, at a follow-up appointment on May 27, 2015, Dr. Siegert noted Employee
was doing well. She had repaired three hernias with mesh and Employee was
experiencing no difficulties.

        Employee returned to Dr. Siegert for another follow-up on June 10, 2015. He was
still doing well with no problems. Dr. Siegert noted Employee would be out of work for
a total of six weeks and that he could “resume normal activity without restrictions . . .
[and was] encouraged to return to normal lifting slowly and gradually to reduce the risk
of recurrent hernia.”

       After being laid off by Employer, Employee began working as an electrician for
another employer, Emory Electric, through a temporary staffing agency. On February 18,
2016, Employee returned to Dr. Siegert reporting he had been “doing well until about two
weeks ago when had to carry his 20 [pound toolbox] up 4 flights of stairs.” Dr. Siegert’s
note reflects that, later that evening, he noticed the area around his prior surgical repair
was red, tender, and swollen. Approximately a week later, he experienced burning in the
area of the prior incision, felt a “squishing sensation,” and was able to “push in some
contents back into his abdominal cavity.” Dr. Siegert diagnosed Employee with an
incisional hernia and recommended surgery because “it appears that the mesh from the
previous placement has pulled away from the inferior aspect of the repair and has had a
‘recurrence’ at the inferior aspect of his previous hernia.”

        In response to questions from Employer concerning the recurrent hernia, Dr.
Siegert opined that Employee had “a 10% risk of recurrent hernia after repair. Any
lifting, straining, pushing or pulling can be associated with a recurrence. The timing of
the ‘incident’ and observation of a ‘new bulge’ seem to correlate [with] each other.” Dr.
Siegert believed the “‘new’ problem is actually a recurrence of the original hernias.”
Employee sent his own letter to Dr. Siegert seeking clarification of her opinion with
respect to the cause of his recurrent hernia. In response, Dr. Siegert stated that “[t]he
recurrent hernia is a direct result of having a previous hernia.”


                                             2
       The trial court ruled that the recurrent hernia was the direct and natural
consequence of the original hernias and ordered Employer to provide the recommended
medical care. The trial court denied Employee’s request for temporary disability
benefits, finding he had not presented evidence that a physician had taken him off work
or assigned work restrictions after his release to full duty on June 10, 2015. 1 Employer
has appealed the award of medical benefits for the recurrent hernia.

                                           Standard of Review

       The standard we apply in reviewing a trial court’s decision is statutorily mandated
and limited in scope. Specifically, “[t]here shall be a presumption that the findings and
conclusions of the workers’ compensation judge are correct, unless the preponderance of
the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court’s
decision may be reversed or modified if the rights of a party “have been prejudiced
because findings, inferences, conclusions, or decisions of a workers’ compensation judge:

          (A)     Violate constitutional or statutory provisions;
          (B)     Exceed the statutory authority of the workers’ compensation judge;
          (C)     Do not comply with lawful procedure;
          (D)     Are arbitrary, capricious, characterized by abuse of discretion, or
                  clearly an unwarranted exercise of discretion; or
          (E)     Are not supported by evidence that is both substantial and material
                  in the light of the entire record.”

Tenn. Code Ann. § 50-6-217(a)(3) (2015).

                                                  Analysis

        Employer raises three issues on appeal: 1) whether the trial court erred in finding
Employee was likely to prevail at trial given that his recurrent hernia arose primarily out
of his employment with a different employer; 2) whether a subsequent intervening event
broke the chain of causation; and 3) whether the last injurious exposure rule should shift
liability for Employee’s current hernia to his subsequent employer. Each of these issues
is premised upon Employer’s assertion that Employee’s recurrent hernia, rather than
being causally related to his prior compensable injury, is the result of his new
employment and, therefore, the responsibility of his subsequent employer. The trial court
resolved these issues in favor of Employee, finding that he was likely to prove at trial the
current hernia arose primarily from the initial injury and is the responsibility of
Employer. We find the weight of the evidence does not preponderate against the trial
court’s decision.


1
    Employee has not challenged the denial of temporary disability benefits.
                                                      3
        An employee bears the burden of proof on every essential element of his or her
claim. Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App.
Bd. LEXIS 39, at *6 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015). However, at an
expedited hearing, an employee may be granted some relief if he or she comes forward
with sufficient evidence from which the trial court can determine the employee is likely
to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing, No.
2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp.
App. Bd. Mar. 27, 2015). This lesser evidentiary standard “does not relieve an employee
of the burden of producing evidence of an injury by accident that arose primarily out of
and in the course and scope of employment at an expedited hearing, but allows some
relief to be granted if that evidence does not rise to the level of a ‘preponderance of the
evidence.’” Buchanan, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6.

      Admittedly, the medical proof is somewhat equivocal. In correspondence dated
March 31, 2016, Employer posed the following question to Dr. Siegert:

      In the visit of February 18, 2016, your notes record [Employee’s] history of
      noticing the symptoms of a hernia shortly after lifting and carrying 20
      pounds up four flights of stairs . . . . Assuming this history to be accurate,
      would you agree that, within a reasonable degree of medical certainty, this
      incident is the primary cause of the “new” incisional hernia? (“Primary” is
      defined in the TN law as a greater than 50% cause.) Please explain.

Dr. Siegert responded:

      Yes. [H]e has a 10% risk of recurrent hernia after repair. Any lifting,
      straining, pushing or pulling can be associated with a recurrence. The
      timing of the “incident” and the “new bulge” seem to correlate [with] each
      other. The “new” problem is actually a recurrence of the original hernia.

        Employee, seeking clarification from Dr. Siegert, also sent her a series of
questions. In response to his inquiry regarding whether the more recent hernia would
have occurred had he not experienced the previous hernias, Dr. Siegert opined that
having had a previous hernia repair resulted in a higher risk of a recurrent hernia at the
same location. Employee also asked whether Dr. Siegert would “agree or disagree within
a reasonable degree of medical certainty that this new occurrence is a result of the 10%
risk of recurrence that the repair mesh carries with it.” In response, Dr. Siegert stated
“[t]he recurrent hernia is a direct result of having a previous hernia.”

       Hence, the authorized physician for Employee’s injury has rendered an opinion,
the only medical opinion in the record, that Employee’s recurrent hernia was “actually a
recurrence of the original” hernias and was the “direct result” of his having suffered
previous hernias in the same location. The medical evidence is uncontradicted that

                                            4
“mesh [used to repair the prior hernias] pulled away” and that “having a previous hernia
repair certainly puts that area of previous surgery at risk of recurrent hernia.” Moreover,
while Employer argues that Employee’s carrying his toolbox up four flights of stairs is
the cause of his recurrent hernia, the trial court implicitly determined that Dr. Seigert’s
acknowledgment of a temporal relationship between the carrying of his toolbox and the
development of recurrent symptoms did not outweigh her opinion that the recurrent
hernia was a “direct result” of the prior hernias. We cannot conclude that the trial court
erred at this stage of the case.

        Accordingly, we find that the evidence does not preponderate against the trial
court’s determination that the chain of causation was not broken by an intervening event
and that Employee’s subsequent employer is not responsible for benefits related to
Employee’s current hernia by virtue of the last injurious injury rule. While Employee
identified the only work-related activity he could think of that may have been strenuous
enough to cause the recurrent hernia, the medical proof is sufficient at this stage of the
claim to establish a causal connection between the original hernias and the subsequent
hernia. Thus, the determination of the trial court is affirmed.

                                              Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court’s decision. Nor does the trial court’s decision violate any of the standards
set forth in Tennessee Code Annotated section 50-6-217(a)(3). Accordingly, the trial
court’s decision is affirmed. The case is remanded for any further proceedings that may
be necessary.2




2
    On December 5, 2016, Employer filed a motion for oral argument. The motion is denied as moot.
                                                    5
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Edward Richards                           )                  Docket No.   2016-01-0212
                                          )
v.                                        )                  State File No. 11422-2015
                                          )
Kiewit Power Constructors Company, et al. )


                                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 9th day of December, 2016.
 Name                    Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

 Edward Richards                          X                         X     26 Mountain Brook Drive
                                                                          Candler, NC 28715;
                                                                          mojojoot@att.net
 Mary Dee Allen                                                     X     mallen@wimberlylawson.com
 Audrey A. Headrick,                                                X     Via Electronic Mail
 Judge
 Kenneth M. Switzer,                                                X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: Matthew.Salyer@tn.gov
