                                                                                                   FILED
                                                                                                 Mar 22, 2018
                                                                                                 07:15 AM(CT)
                                                                                               TENNESSEE COURT OF
                                                                                              WORKERS' COMPENSATION
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            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT MEMPHIS

William Simpson,                                      )           Docket No. 2017-08-0805
           Employee,                                  )
v.                                                    )
City Auto, LLC,                                       )           State File No. 46115-2017
            Employer,                                 )
And                                                   )
Accident Fund,                                        )          Judge Deana Seymour
            Carrier.                                  )


                           EXPEDITED HEARING ORDER


       William Simpson filed a Request for Expedited Hearing seeking medical and
temporary disability benefits for an alleged work-related fall. City Auto denied the claim
as idiopathic. This Court held a hearing on February 26, 2018. The controlling issue is
whether Mr. Simpson sustained an injury arising primarily out of and in the course and
scope of his employment, thus entitling him to the requested benefits. Because Mr.
Simpson proved a likelihood of succeeding on the merits of this claim, the Court grants
his requests.

                                    History of Claim

        Mr. Simpson claimed he suffered from heat exhaustion, which caused him to fall
while working as a mechanic for City Auto on June 20, 2017. Mr. Simpson testified that
he was working in a hot, humid shop with industrial fans but no air conditioner. He began
to feel light-headed, so he walked to another building to cool down and discuss work with
his supervisor, Stephanie Oaks.

       Ms. Oaks recalled a pale Mr. Simpson trying to discuss vehicle repairs with her.
Suddenly, his speech slurred, he stumbled, lost consciousness, fell back and hit his head
on the concrete floor. She testified Mr. Simpson did not complain of the heat or tell her of
his dizziness before he fell. She confirmed Mr. Simpson's work area was hot but testified
the area had industrial fans with cool towels and an air-conditioned lounge to escape the

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heat.

        Other City Auto employees also testified about the incident. Relationship Manager
Pricilla Guy described Mr. Simpson's fall as "hard and loud." She agreed that the work
area was hot. Service advisor Graham Bryant recalled, "Everybody was hot." Mr. Bryant
stated that City Auto furnished water and Gatorade to its employees. He heard Mr.
Simpson's slurred speech and watched him stumble and fall. Mr. Simpson's head bled, he
"zoned out," was unaware of the fall and wanted to return to work. However, Mr. Bryant
insisted he go to the hospital.

      Mr. Simpson refused to go to the hospital by ambulance, 1 so a co-worker took him
home. Mr. Simpson's wife immediately drove him to the hospital, where Dr. Ahmad Al-
Hamda, a neurologist, treated Mr. Simpson for multifocal intracranial hemorrhages, a
traumatic subdural hematoma, a subarachnoid hemorrhage and a traumatic headache. 2
Mr. Simpson remained hospitalized until July 6.

       After discharge, City Auto denied the claim as idiopathic. Nevertheless, Mr.
Simpson continued to treat with Dr. Al-Hamda on his own. Dr. Al-Hamda recommended
additional testing, physical therapy, and an ENT evaluation for vertigo. He also referred
Mr. Simpson to a pain clinic. On July 23, Mr. Simpson received emergency treatment for
stroke symptoms. He was diagnosed with a soft spot on his head and a bleeding brain.

      Mr. Simpson followed up with Dr. Al-Hamda on August 7. He diagnosed Mr.
Simpson with post-traumatic concussion syndrome, post-traumatic headaches, post-
traumatic seizures and cognitive decline. He related Mr. Simpson's injuries to his hot
working conditions and concluded that the head trauma contributed more than fifty
percent to Mr. Simpson's current symptoms.

      Mr. Simpson filed a Petition for Benefit Determination on October 9, 2017,
seeking workers' compensation benefits. Based on his wage statement, Mr. Simpson's
average weekly wage is $836.68, which results in a compensation rate of$557.82.

                            Findings of Fact and Conclusions of Law

                                           Standard Applied

       At an expedited hearing, Mr. Simpson need not prove every element of his claim
by a preponderance of the evidence but must come forward with sufficient evidence from
which the trial court can determine that he is likely to prevail at a hearing on the merits.

1
  Mr. Simpson testified that his wife was sick, and he thought it better for her to see him when she learned
of his accident.
2
  Mr. Simpson did not have any prior, significant head injuries.

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McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015). This lesser evidentiary standard does not relieve Mr. Simpson of
the burden to produce evidence of an injury by accident that arose primarily out of and in
the course and scope of employment, but "allows some relief to be granted if that
evidence does not rise to the level of a "preponderance of the evidence."' Buchanan v.
Carlex Glass Co., 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Sept. 29, 2015).

                                         Causation

        The Workers' Compensation Law defines "injury" as an "injury by accident ...
arising primarily out of and in the course and scope of employment, that causes ... the
need for medical treatment." Tenn. Code Ann. § 50-6-102(14) (2017). An injury is
accidental if it is "caused by a specific incident, or set of incidents, arising primarily out
of and in the course and scope of employment, and is identifiable by time and place of
occurrence[.]" Tenn. Code Ann. § 50-6-1021(14)(A). "An idiopathic injury is one that
has an unexplained origin or cause and generally does not arise out of the employment
unless 'some condition of the employment presents a peculiar or additional hazard. " '
McCaffery v. Cardinal Logistics, 2015 TN Wrk. Comp. App. Bd. LEXIS 50, at *9-11
(Dec. 10, 20 15)(internal citations omitted). An injury resulting from an idiopathic
condition is compensable "if an employment hazard causes or exacerbates the injury." !d.
at 10. "Cause" in this context means that the accident originated in the hazards to which
the employee was exposed as a result of performing his or her job duties. !d. at * 11.

       Here, Mr. Simpson recalled that on June 20, he was working in a hot, humid, and
dusty shop when he began feeling ill. He went to another building to tell his supervisor
that he did not feel well and needed to go home early. He could not recall the fall, but his
co-workers could. They all remembered June 20 as a hot Memphis day. They saw Mr.
Simpson enter the building, stumble and fall backwards, hitting his head on the concrete
floor.

      The only medical proof came from Dr. Al-Hamda, who admitted Mr. Simpson to
ICU the day of his fall. Dr. Al Hamda related the fall to Mr. Simpson's hot work
environment and stated Mr. Simpson's injuries were more than fifty percent related to the
fall.

       Based on this evidence, the Court holds Mr. Simpson came forward with sufficient
proof to show he is likely to succeed at proving causation at a hearing on the merits.

                                     Medical Benefits

       City Auto denied Mr. Simpson' s claim and never provided medical benefits. Since
Mr. Simpson showed his likelihood of success in proving causation at a hearing on the
merits, City Auto is required to provide medical benefits. Designation of an authorized

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treating physician is typically accomplished through a panel of physician offered by the
employer from which the employee may select his ATP. See Tennessee Code Ann. § 50-
6-204(a)(3)(A)(i). However, if an employer fails to provide a panel, it risks having to pay
for all reasonable and necessary medical expenses incurred by an employee for treatment
with an unauthorized physician and also risks having to provide continuing care with the
unauthorized physician. See Young v. Young Elec., 2016 TN Wrk. Comp. App. Bd.
LEXIS 24, at *16-17 (May 25, 20 16) (holding that the employer who failed to set an
appointment with the panel physician was required to provide continued care with the
unauthorized physician who treated the employee).

      Here, Dr. Al-Hamda began treating Mr. Simpson since the day of his injury.
Thus, the Court finds Mr. Simpson is entitled to payment of his medical bills and for
ongoing treatment according to Tennessee Code Annotated section 50-6-204. The Court
designates Dr. Al-Hamda as the authorized treating physician for ongoing treatment.

                              Temporary Disability Benefits

        To receive temporary total disability benefits, Mr. Simpson must show (1) total
disability from working as the result of a compensable injury; (2) a causal connection
between the injury and the inability to work; and (3) the duration of the period of
disability. Shepherd v. Haren Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS
15, at *13 (Mar. 30, 2016). An employee may recover temporary total disability benefits
until the employee is able to return to work or attains maximum medical improvement.
Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7
(Dec. 11, 2015).

       The unrebutted evidence is that Dr. Al-Hamda took Mr. Simpson off work from
June 20 to the present because of his work injury. Thus, Mr. Simpson is entitled to
$21,754,98 in past temporary disability benefits based on a compensation rate of$557.82,
as well as continuing temporary disability benefits until he reaches maximum medical
improvement or is able to return to work.

                                     Attorneys' Fees

       Mr. Simpson's counsel requests attorneys' fees under Tennessee Code Annotated
section 50-6-226(d)(1)(b). This statute does not set a time for attorneys' fee awards, but
the Appeals Board stated:

      Given the uncertainties inherent in litigation, the limited issues typically
      addressed at expedited hearings, the fact that discovery and medical proof
      often are incomplete at an interlocutory stage of a case, the standard of
      proof that applies at expedited hearings, and the fact that a trial judge's
      determinations at an interlocutory hearing are subject to change at any time

                                            4
       prior to the entry of a final compensation hearing order, a decision to award
       attorneys' fees and expenses at an interlocutory stage of a case should be
       made only in extremely limited circumstances.

Thompson v. Comcast Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *22-32 (Jan.
30, 2018). The Court holds this case does not fall within "extremely limited
circumstances" to justify an award of attorneys' fees at this interlocutory stage. Thus, the
Court denies this request at this time.

                                     Penalty Referral

       Tennessee Code Annotated sections 50-6-118(a)(3) and (12) authorize the Bureau
of Workers' Compensation to consider the establishment and collection of a penalty for
bad-faith denial of claims and the "[f]ailure of an employer to timely provide a panel of
physicians that meets the statutory requirements of this chapter." As indicated above, the
Court holds City Auto denied Mr. Simpson's claim despite eyewitness testimony of the
accident and the only treating physician relating the injury to work. For those reasons, the
Court refers City Auto to the Bureau's Penalty Division for investigation.

IT IS, THEREFORE, ORDERED as follows:

   1. City Auto shall pay Mr. Simpson's medical bills to date and continue to provide
      medical benefits made reasonably necessary by the injury of June 20, 2017. The
      Court designates Dr. Al-Hamad as the authorized treating physician for ongoing
      treatment.

   2. Mr. Simpson's request for attorneys' fees under Tennessee Code Annotated
      section 50-6-226(d)(l)(B) is denied at this time.

   3. City Auto shall pay Mr. Simpson accrued temporary total disability benefits at his
      compensation rate of $557.82 from June 20, 2017, through the date of this Order,
      totaling $21,754.98. It shall continue making those payments until Dr. Al-Hamad
      releases him to return to work or places. him at maximum medical improvement.

   4. The Court refers City Auto to the Bureau's Penalty Division for investigation of
      penalties under Tennessee Code Annotated sections 50-6-118(a)(3) and (11).

   5. This matter is set for a Scheduling Hearing on June 4, 2018, at 10:00 a.m.
      central time. You must call 615-532-9552 or toll-free at 866-943-0025 to
      participate in the Hearing. Failure to call may result in a determination of the
      issues without your participation.



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6. 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 vta email
   WCComQliance.Program@tn.gov.

   ENTERED March 22,2018.




                           '-c~JUDGE DEAN~ C. SEYMOUR
                               Court of Workers' Compensation Claims




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                                         APPENDIX

   Exhibits:
      1. Medical records with Table of Contents (Collective)
      2. Form C-41 Wage Statement
      3. Form C-23 Notice of Denial of Claim for Compensation
      4. Form C-20 Employer's First Report of Work Injury or Illness
      5. Medical notes from Eric Jerome Steele, M.D., dated June 20, 2017
      6. Medical notes from Smriti Chuke, M.D., dated June 30, 2017
      7. Causation response letter from Ahmad Al-Hamda
      8. January 22, 2018letter from Ahmad Al-Hamda


   Technical Record:
      1. Petition for Benefit Determination
      2. Dispute Certification Notice
      3. Request for Expedited Hearing, with attached Affidavit of William Simpson
      4. Pre-Hearing Brief of William Simpson, with attachments
      5. Employer's Pre-Hearing Statement
      6. Employer's Witness List
      7. Employer's Exhibit List

                             CERTIFICATE OF SERVICE

        I certify that a copy of this Order was sent to these recipients by the following
  methods of service on March 22, 2018.


Name                   Certified   Fax    Regular   Email    Sent to
                       Mail               mail
M~nica  Rejaei,                                        X     mrejaei@nstlaw.com
Employee's attorney
Gordon Aulgur,                                         X     gordon. aulgur@acci dentf1.md.com
Employer's attorney
Penalty Division                                       X     WCComp liance.Pro~ram (clltn.gov




                                                     , Clerk of Court
                                          Court of rkers' Compensation Claims
                                          WC.Com·tClerl<@tn.gov


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