FILED
June 21,2018
TN COURT OF
WORKERS’ COMPENSATION

CLAIMS

Time: 11:03 AM. EASTERN

 

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

AT KNOXVILLE
RODNEY WHITWORTH, ) Docket No.: 2016-03-1387
Employee, )
V. )
TAYLOR PLUMBING OF EAST ) State File No.: 18696-2016
TENNESSEE, INC., )
Employer, )
and )
NATIONWIDE PROPERTY AND ) Judge Lisa A. Lowe
CASUALTY INS. CO., )
Carrier. )

 

EXPEDITED HEARING ORDER GRANTING BENEFITS
(Decision on the Record)

 

 

This matter came before the Court upon the Request for Expedited Hearing filed
by Rodney Whitworth seeking a decision on the record. Taylor Plumbing filed a
response but did not request an evidentiary hearing. The Court issued a Docketing
Notice on May 25, 2018, listing the documents to be considered. The Court gave
Mr. Whitworth and Taylor Plumbing until June 8, 2018, to file objections and/or position
statements. Mr. Whitworth filed a supporting brief. Taylor Plumbing filed nothing.
Upon review of the record, the Court finds it needs no additional information to
determine whether Mr. Whitworth is likely to prevail at a hearing on the merits of the
claim.

The central legal issue is whether Mr. Whitworth is likely to prevail at a hearing
on the merits that he is entitled to medical benefits and temporary total disability benefits.
For the reasons below, the Court holds Mr. Whitworth came forward with sufficient
evidence demonstrating he is entitled to past and ongoing medical benefits but is not
entitled to temporary benefits at this time.
History of Claim
A review of the written materials revealed the following facts.

Taylor Plumbing employed Mr. Whitworth as a laborer. He initially worked for
Taylor Plumbing as a subcontractor through Payroll Solutions but later worked directly
for Taylor Plumbing as an employee.'

As an employee, Mr. Whitworth worked forty hours per week. He was
responsible for completing service calls assigned to him by his supervisor. On August
14, 2015, Taylor Plumbing assigned Mr. Whitworth to remove and replace a water heater
that weighed approximately sixty to eighty pounds. When replacing the water heater,
Mr. Whitworth heard his back “pop” and immediately began to feel low back pain,
numbness, and tingling. Mr. Whitworth completed installation of the water heater and
contacted his immediate supervisor, Tommy McNew, to provide notice of the injury.
Taylor Plumbing did not provide Mr. Whitworth with a panel of physicians nor did it
offer him medical treatment.

Mr. Whitworth did not seek treatment on the day of his injury. However, after
increased and continuing pain, he went to his family physician, Dr. Howard McNeeley,
on August 17. On August 24, Dr. McNeeley referred Mr. Whitworth to orthopedist
Dr. Paul Johnson, who noted Mr. Whitworth’s low back pain and radiating leg
symptoms. He ordered x-rays, which showed degenerative changes at L4 with a
reduction in disc height. Dr. Johnson ordered an MRI that revealed a herniated disk at
L4, which correlated with Mr. Whitworth’s right leg radiculopathy. After an
unsuccessful steroid injection, Dr. Johnson recommended surgery, which he performed
on September 12, 2016. Mr. Whitworth also received pain management treatment from
Comprehensive Pain Specialists.

Mr. Whitworth continued to have problems after the initial surgery. As a result,
on January 12, 2017, Dr. Johnson recommended Mr. Whitworth undergo additional
surgery. On April 12, Dr. Johnson decompressed more of the L4 level and performed a
bilateral fusion of the L4 and L5 vertebra.

Taylor Plumbing obtained an Independent Medical Examination (IME) with
Dr. Patrick Bolt. Dr. Bolt confirmed the herniated disc at L4-5 diagnosis as the cause of
Mr. Whitworth’s severe low back pain and leg pain. He also stated that he believed,
within a reasonable degree of medical certainty, that Mr. Whitworth’s symptoms are
more likely than not related to the August 14, 2015 work injury, which necessitated the

 

' Taylor Plumbing originally denied the claim on the grounds of independent contractor but following
discovery, it agreed Mr. Whitworth was in fact an employee. Despite that admission, Taylor Plumbing
continued to deny any medical and temporary disability benefits.

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later surgeries. Dr. Bolt noted that Mr. Whitworth’s medical records indicated some
earlier history of low back pain; however, he concluded that absent additional medical
records, the current symptoms are the result of the August 14, 2015 work injury and not
some continuing or previous injury. Dr. Bolt stated that Mr. Whitworth reached
maximum medical improvement (MMI) and assigned a permanent impairment rating of
9%.

Mr. Whitworth obtained his own IME with Dr. William Kennedy. Dr. Kennedy
concluded that Mr. Whitworth’s work injury was the primary cause of the L4 disc
displacement and radiculopathy that required two surgeries and that the work injury
primarily caused a permanent aggravation and advancement of Mr. Whitworth’s pre-
existing L4 degenerative condition. Further, he stated that all of the testing and
subsequent treatment following the work injury was appropriate and medically necessary
as the result of that work injury. Dr. Kennedy agreed that Mr. Whitworth reached MMI
and assigned a permanent impairment rating of 14%.

Jimmy Taylor, the owner of Taylor Plumbing, testified by deposition that he
continued paying Mr. Whitworth his weekly paycheck for a few weeks after the work
injury but never paid temporary total or temporary partial disability benefits.
Mr. Whitworth stated he was unable to return to work because of his injury and is entitled
to TTD benefits from the date of injury through MMI. Dr. Bolt found Mr. Whitworth
reached MMI on January 10, 2018, while Dr. Kennedy found MMI on February 5, 2018.
The parties agreed to a compensation rate of $531.98. Additionally, Mr. Whitworth
seeks payment for all medical expenses related to the work injury.

In its response, Taylor Plumbing stated it does not dispute Mr. Whitworth’s
request for reasonable, necessary, and causally-related medical treatment for the work
injury, but it reserves all applicable compensability defenses. Taylor Plumbing agreed to
institute medical benefits in this matter but did not agree to pay for Mr. Whitworth’s
earlier treatment. It further argued that Mr. Whitworth failed to establish the duration of
time he was unable to work resulting from the injury. Mr. Whitworth testified he quit his
job after the back injury, but that statement is insufficient proof that he had restrictions
that precluded him from working from the date of injury. Neither Dr. Bolt nor Dr.
Kennedy addressed Mr. Whitworth’s work abilities from the date of the injury until the
time they saw him. Therefore, Taylor Plumbing averred Mr. Whitworth is not entitled to
temporary disability benefits.

Findings of Fact and Conclusions of Law

Mr. Whitworth need not prove every element of his claim by a preponderance of

 

*Mr. Whitworth did not provide documentation.of the treatment charges with Drs. McNeeley or Johnson
or pain management.
the evidence in order to obtain relief. McCord v. Advantage Human Resourcing, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Instead, he must come
forward with sufficient evidence from which this Court might determine he is likely to
prevail at a hearing on the merits. /d.; Tenn. Code Ann. § 50-6-239(d)(1) (2017).

Medical Benefits

The Workers’ Compensation Law provides that the employer shall furnish medical
treatment made reasonably necessary by the work injury. See Tenn. Code Ann. § 50-6-
204(a)(1)(A). Here, both IME doctors concluded the need for the medical treatment was
the work-related injury. An employer risks being required to pay for unauthorized
treatment if it does not provide the treatment made reasonably necessary by the work
injury as required by Tennessee Code Annotated section 50-6-204(a)(1)(A). See Young
v. Young Elec. Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16 (May 25, 2016).

Mr. Whitworth sustained a specific work-related incident on August 14, 2015.
Despite receiving adequate statutory notice of the injury, Taylor Plumbing failed to
provide a panel of physicians or provide medical treatment. Due to that failure, the Court
finds it reasonable that Mr. Whitworth sought treatment on his own. Though he had
some history of low back pain, both Drs. Bolt and Kennedy surmised that
Mr. Whitworth’s low back and right leg pain and resultant treatment were caused by the
August 14 work injury. Taylor Plumbing offered no reason or explanation why it neither
reimbursed Mr. Whitworth for past reasonable and necessary medical expenses nor
provided ongoing medical treatment after its own expert related Mr. Whitworth’s
condition to the work injury. The Court concludes that Mr. Whitworth demonstrated he
is likely to prevail at a hearing on the merits that his injury arose primarily out of and in
the course and scope of his employment.

Turning to Mr. Whitworth’s medical benefits request, the Court holds Taylor
Plumbing must provide reasonable and necessary medical treatment related to the injury.
Taylor Plumbing shall authorize treatment with Dr. Johnson, who shall become the
authorized treating physician. Taylor Plumbing shall also pay all reasonable and
necessary medical expenses resulting from the work injury, including expenses for
treatment Mr. Whitworth already received.

Temporary Disability Benefits

Upon consideration of the evidence, the Court finds Mr. Whitworth did not come
forward with sufficient medical proof to satisfy the requirements for entitlement to
temporary total or temporary partial disability benefits. An injured worker is eligible for
temporary disability benefits if (1) the worker became disabled due to a compensable
injury, (2) there is a causal connection between the injury and the inability to work, and
(3) the worker established the duration of the period of disability. James v. Landair

4
Transp., Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 28, at *16 (Aug. 26, 2015).
Temporary partial disability benefits may be awarded when the temporary disability
resulting from a work-related injury is not total, and this entitlement exists for the “time,
if any, during which the injured employee is able to resume some gainful employment
but has not reached maximum recovery.” Williams v. Saturn Corp., No. M2004-01215-
WC-R3-CV, 2005 Tenn. LEXIS 1032, at *6 (Tenn. Workers’ Comp. Panel Nov. 15,
2005).

Here, Mr. Whitworth provided the opinions of Drs. Bolt and Kennedy that he had
permanent restrictions after reaching MMI, but he failed to provide a medical opinion
addressing his inability to work or any assigned restrictions during the course of his
treatment with Dr. Johnson. Mr. Whitworth testified he was unable to work after the
injury. Presumably, there would be a period following both surgeries that Dr. Johnson
either took him off work completely or assigned restrictions. However, without medical
proof of disability and the duration of that disability, the Court is unable to hold that he is
likely prevail at a hearing on the merits on his claim for temporary disability benefits.

IT IS, THEREFORE, ORDERED as follows:

1. Taylor Plumbing shall provide Mr. Whitworth with medical treatment for his
injuries as required by Tennessee Code Annotated section 50-6-204, including
payment of all reasonable and necessary medical expenses associated with his
work injury. Dr. Johnson shall become the authorized treating physician. Medical
bills shall be furnished to Taylor Plumbing by Mr. Whitworth or the medical
providers.

2. Mr. Whitworth is not entitled to temporary disability benefits at this time.

3. This matter is set for a Scheduling Hearing on August 7, 2018, at 10:00 a.m.
Eastern Time. The parties must call (865) 594-0091 or (toll-free) (855) 543-5041
to participate in the Scheduling Hearing. Failure to appear by telephone may
result in a determination of the issues without your further 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)
(2017). 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.

 
5. For questions regarding compliance, please contact the Workers’ Compensation

Compliance Unit by email at WCCompliance.Program@tn.gov.

wa A We.

LISA A. LOWE, JUDGE
Court of Workers’ Compensation Claims

ENTERED June 21, 2018.

 

APPENDIX

The Court reviewed the entire case file in reaching its decision. Specifically, the

Court reviewed the following documents, marked as exhibits for ease of reference:

Exhibits:

I.

SIAAKRWY

9,

Petition for Benefit Determination

Dispute Certification Notice dated January 31, 2017

Scheduling Hearing Order

Mr. Whitworth’s Request for Expedited Hearing

Brief in Support of Request for Expedited Hearing

Dr. William Kennedy’s February 5, 2018 Independent Medical Examination
Medical Records from Tennessee Orthopaedic Clinic

Deposition of Rodney Whitworth

Deposition of Jimmy Taylor with exhibits

10. Taylor Plumbing ’s Response to Request for Expedited Hearing
11. Docketing Notice for On-The-Record Determination
12.Mr. Whitworth’s Position Statement
CERTIFICATE OF SERVICE

I 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 June 21, 2018.

 

 

 

Joshua A. Wolfe,
Employer’s Attorneys

 

 

 

 

 

Name Certified | Fax | Email | Service sent to:
Mail
Ameesh A. Kherani, xX Akherani@davidhdunaway.com
Employee’s Attorney
Stephen B. Morton, x Stephen.morton@mgclaw.com

Joshua.wolfe@mgclaw.com

 

dD Vent JS pista

PENNYCSHRUM, Court a ee POS
WC.CourtClerk@tn.gov

 
