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

SEAN SMITH,                                                )    Docket No.: 2016-05-0150
         Employee,                                         )
v.                                                         )    State File No.: 12458-2016
YATES SERVICES, LLC,                                       )
         Employer.                                         )    Judge Dale Tipps
                                                           )



                                 EXPEDITED HEARING ORDER
                                DENYING REQUESTED BENEFITS
                                  (DECISION ON THE RECORD)


       This matter came before the undersigned workers’ compensation judge on
December 22, 2016, on the Request for Expedited Hearing filed by the employee, Sean
Smith, pursuant to Tennessee Code Annotated section 50-6-239 (2016). The present
focus of this case is whether Mr. Smith is entitled to medical and temporary disability
benefits. The central legal issues are whether the evidence is sufficient for the Court to
determine that Mr. Smith is likely to establish at a hearing on the merits he suffered an
injury arising primarily out of and in the course and scope of his employment, and
whether the statute of limitations bars his claim. For the reasons set forth below, the
Court holds Mr. Smith is not entitled to the requested medical and temporary disability
benefits at this time.1

                                               History of Claim

      A review of Mr. Smith’s affidavit and recorded statement shows the following: He
began working on the assembly line for Yates in January 2012. Early in the course of his
employment with Yates, he began having pain in his right hand. He reported the
problem, and Yates assigned him different job duties.

1
 A complete listing of the technical record and exhibits considered by the Court is attached to this Order as an
appendix.

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       In March 2014, after being “forced to work a 20-day straight schedule,” Mr. Smith
began having pain and tingling, this time in both his hands. He informed his supervisor,
Jeff Hudgins, who told him to file a claim under his short-term disability coverage. Mr.
Smith filed a claim and received short-term disability benefits while he was out of work
during April 2014. Yates required a medical clearance before allowing Mr. Smith to
return to work, so he saw Dr. Charles Kaelin, who diagnosed carpal tunnel syndrome.
Dr. Kaelin suggested further treatment, but Mr. Smith could not afford it and returned to
work with no restrictions in May 2014. The pain in Mr. Smith’s hands never went away
over the next eight months of work. Yates subsequently terminated him, and his last day
of work was December 17, 2014.

       Mr. Smith continues to have pain and tingling in his arms and hands. He did not
seek workers’ compensation medical treatment from Yates because he did not know that
was an option. He thought he had to get treatment on his own. However, because he lost
his medical insurance, he has received no medical care for his condition since leaving
Yates.

       A review of Dr. Kaelin’s records shows that he saw Mr. Smith on April 8, 2014,
for complaints of hand and arm pain, tingling, and weakness. Mr. Smith reported the
symptoms had “been there for quite some time.” Dr. Kaelin diagnosed bilateral ulnar
nerve neuropathy and bilateral carpal tunnel syndrome. He prescribed Relafen and wrist
braces.

       Upon Dr. Kaelin’s referral, Dr. John Schneider performed motor nerve conduction
and EMG tests on April 24, 2014. Dr. Schneider’s conclusion was “normal study,” with
“no clear-cut electrodiagnostic evidence to suggest peripheral neuropathy, plexopathy, or
radiculopathy.”

        Mr. Smith returned to Dr. Kaelin on April 29, 2014, reporting that his braces had
not provided much relief and that his work at the Nissan plant seemed to aggravate his
problem. Dr. Kaelin reviewed the EMG and nerve conduction results and diagnosed
bilateral carpal tunnel syndrome. He performed a cortisone injection on Mr. Smith’s
right wrist and instructed him to return in three weeks. He also released Mr. Smith to full
duty.

       On April 6, 2016, Dr. Kaelin responded to a letter from Yates’ workers’
compensation carrier. Asked whether Mr. Smith sustained a work injury that arose
primarily out of and in the course and scope of his employment at Yates, Dr. Smith
checked the “No” response. He also wrote, “Though the diagnosis of CTS does not
require a positive [nerve conduction study], his EMG was normal and symptoms mild.
Further, no treatment was sought for 2 years, so no proof of work causation.”

       Mr. Smith filed a Petition for Benefit Determination on July 17, 2016, seeking

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medical and disability benefits. The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice. Mr. Smith
filed a Request for Expedited Hearing and asked the Court to issue a decision based on
the record without an evidentiary hearing. The Court issued a Docketing Notice on
December 12, 2016, identifying the documents it received for review and advising the
parties that they had until December 21, 2016, to file any objections to the admissibility
of any of those documents.2

       In his brief, Mr. Smith contends he suffered a gradually occurring injury arising
out of and in the course of his employment. He argues that Yates seeks to contravene the
workers’ compensation statute by refusing to provide benefits when he reported his injury
and then relying on a statutory defense. Mr. Smith characterizes this as selectively
following the law when it is beneficial to Yates and ignoring it when it is detrimental.
Mr. Smith also disputes Dr. Kaelin’s causation opinion because Dr. Kaelin was not an
authorized treating physician and because he gave that opinion two years after Mr.
Smith’s initial injury.

       Yates contends it owes no workers’ compensation benefits because Mr. Smith’s
claim is barred by the statute of limitations. Alternatively, Yates relies on Dr. Kaelin’s
opinion that Mr. Smith’s carpal tunnel syndrome did not arise primarily out of and in the
course of his employment.

                              Findings of Fact and Conclusions of Law

       The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Mr. Smith need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Tenn. Workers’ Comp. App. Bd. 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. Id.; Tenn. Code Ann. § 50-6-239(d)(1)(2016).

         Applying these principles to the facts of this case, the Court cannot find that Mr.
2
  Mr. Smith filed his Request for Expedited Hearing on November 22, 2016. On December 13, 2016, the day after
the Court issued its docketing notice, Yates filed a Motion/Request for Evidentiary Hearing contending that witness
testimony would be necessary to address its affirmative statute of limitations defense. Counsel for Yates stated that
he dictated the motion on December 7, following a discussion with his clients, and that the delay in filing the motion
was due to his failure to place his dictation in “rush status.” Tennessee Compilation Rules and Regulations 0800-
02-21-.14(1)(f) (2016) provides: “Any party opposing the request for issuance of a decision on the record shall have
ten (10) business days from the date the request for expedited hearing is filed to file an objection with the clerk.”
Yates filed no objection. To the extent its Motion/Request could be deemed an objection, the Court notes that
Yates’ counsel filed the Motion/Request after the ten-day period expired. The Court notes that, even considering
Yates’ stated reason for the delay, the decision to seek an evidentiary hearing did not occur until December 7, at
which time the ten-day period had already expired. Under the circumstances, the Court finds it is appropriate to
proceed with the ruling based on a review of the file.

                                                          3
Smith appears likely to prevail at a hearing on the merits of his claim.

        Tennessee’s workers’ compensation law provides the following statute of
limitations for initiating a claim:

       In instances when the employer has not paid workers’ compensation
       benefits to or on behalf of the employee, the right to compensation under
       this chapter shall be forever barred, unless the notice required by § 50-6-
       201 is given to the employer and a petition for benefit determination is filed
       with the bureau on a form prescribed by the administrator within one (1)
       year after the accident resulting in injury.

Tenn. Code Ann. § 50-6-203(b)(1) (2016). Further:

       The employer has the burden of proof to establish facts which the employer
       claims as a bar to the workers’ compensation claim, such as the expiration of
       the statute of limitations. When, however, a defendant establishes an
       affirmative defense, the burden shifts to the plaintiff to demonstrate a
       recognized exception.

Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 647 (Tenn. 2008).

        Because Mr. Smith alleged a gradual injury, the law deems the date of his
“accident resulting in injury” to be the last day he worked for Yates. See Maples v.
Federal-Mogul Corp. 2015-04-0039, 2016 TN Wrk. Comp. App. Bd. LEXIS 8, at *27
(Tenn. Workers’ Comp. App. Bd. Feb. 17, 2016) (the “last day worked” rule remains
viable when the applicable provisions of the 2013 Reform Act are construed “fairly,
impartially, and in accordance with the basic principles of statutory construction,” and “in
a manner favoring [n]either the employee [n]or the employer”). It is undisputed that Mr.
Smith has not worked at Yates since December 17, 2014. As Yates never paid workers’
compensation benefits to or on behalf of Mr. Smith, the time for him to file a PBD
expired on December 18, 2015. Because he failed to do so until July 2016, Yates appears
likely to establish at a hearing that his claim is barred by section 203(b)(1).

       Mr. Smith’s argument that Yates’ actions “circumvent[ed] the provisions of the
Workers’ Compensation Law” is not persuasive. He relies on Frayser v. Dentsply Int’l,
Inc., 78 S.W.3d 242 (Tenn. 2002), but that case is distinguishable on the facts. In
Frayser, the employer offered the injured worker “an option to use his health care
benefits in lieu of the workers’ compensation law.” Id. at 249. Because the Workers’
Compensation Law is an exclusive remedy, the Supreme Court held that allowing an
employer to offer an option or alternative remedy would circumvent the purpose of the
law. Id.


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        Unlike Frayser, there is no proof that Yates offered Mr. Smith a choice of benefits
in this case. Rather, it appears Yates told Mr. Smith to file under his short-term disability
plan and failed to provide any medical treatment. This effectively constituted a denial of
his claim, rather than a circumvention of the statute. Faced with this denial, Mr. Smith’s
remedy was to file a PBD to address Yates’ actions and enforce his statutory rights.
Once he failed to do so within one year, those rights no longer existed.

      The Supreme Court noted in Yardley v. Hosp. Housekeeping Sys., LLC, 470
S.W.3d 800, 805 (Tenn. 2015):

       When interpreting statutes, our primary function is to carry out the
       Legislature’s intent without broadening the statute beyond its intended
       scope. State v. Burgins, 464 S.W.3d 298 (Tenn. Apr. 7, 2015). To carry
       out this function, we presume that every word in a statute has meaning and
       purpose and should be given full effect, as long as the result does not
       violate the Legislature’s obvious intent. In re C.K.G., 173 S.W.3d 714, 722
       (Tenn. 2005). When the statutory language is clear and unambiguous, we
       simply apply its plain meaning. Eastman Chem. Co. v. Johnson, 151
       S.W.3d 503, 507 (Tenn. 2004).

Adopting Mr. Smith’s analysis would essentially negate the statute of limitations in every
case where an employer denies a claim. This would conflict with the clear and
unambiguous meaning of section 203(b)(1) and render it meaningless. Pursuant to
Yardley, the Court cannot adopt such a statutory interpretation.

        Even if Mr. Smith were able to establish that his claim is not barred, he would still
be required to prove a compensable injury. In order to do so, he must show that his
alleged injury arose primarily out of and in the course and scope of his employment.
Tenn. Code Ann. § 50-6-102(14) (2016). That is, he must show his injury arose
primarily from a work-related incident, or specific set of work-related incidents,
identifiable by time and place of occurrence. Tenn. Code Ann. § 50-6-102(14)(A)
(2016). Further, he must show, “to a reasonable degree of medical certainty that it
contributed more than fifty percent (50%) in causing the . . . disablement or need for
medical treatment, considering all causes.” Tenn. Code Ann. § 50-6-102(14)(C) (2016).
“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. Tenn. Code Ann. § 50-6-102(14)(D) (2016).

       The Court cannot find at this time that Mr. Smith appears likely to meet his burden
of proving a compensable injury. The parties only submitted one medical opinion
regarding causation, that of Dr. Kaelin. He indicated that Mr. Smith did not sustain a
work injury arising primarily out of and in the course and scope of his employment at
Yates.

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       Mr. Smith disputes Dr. Kaelin’s conclusion because he gave his causation opinion
two years after the initial injury. Mr. Smith fails, however, to provide any factual or legal
grounds for disregarding Dr. Kaelin’s opinion on this basis. It is unclear how the span of
time between the injury and the opinion would lead to an inherently untrustworthy
opinion. Further, because of the lack of medical treatment and the delay in Mr. Smith’s
PBD filing, any medical opinion given in this matter will, by necessity, be given over two
years after the initial injury.

       In his brief, Mr. Smith also appears to suggest that Dr. Kaelin’s opinion is
somehow invalid because he was not an authorized treating physician (ATP) under
Tennessee Code Annotated section 50-6-204. Again, the Court is unaware of any legal
authority supporting this position. It is true that Dr. Kaelin was not Mr. Smith’s ATP, but
this only means that his opinion is not entitled to the statutory presumption of correctness
on the issue of causation. His non-ATP status does not disqualify him from giving his
professional medical opinion.

       Mr. Smith’s dissatisfaction with Dr. Kaelin’s opinion, standing alone, is legally
insufficient to refute it. Neither Mr. Smith nor the Court has the medical qualifications
to revise the doctor’s medical opinion. As our Appeals Board observed, “Judges are not
well-suited to second guess a medical expert’s treatment, recommendations, and or
diagnoses absent some conflicting medical evidence or some other countervailing
evidence properly admitted into the record.” Scott v. Integrity Staffing Solutions, No.
2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8 (Tenn. Workers’ Comp.
App. Bd. Aug. 18, 2015). All the Court has before it is Dr. Kaelin’s opinion that Mr.
Smith’s condition is not work-related. Absent a contrary medical opinion, Mr. Smith
cannot establish that his alleged injury arose primarily out of and in the course and
scope of his employment.

       Therefore, as a matter of law, Mr. Smith has not come forward with sufficient
evidence from which this Court concludes that he is likely to prevail at a hearing on the
merits. The Court, therefore, denies his request for medical and temporary disability
benefits at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Smith’s claim against Yates and its workers’ compensation carrier for the
      requested medical and temporary disability benefits is denied.

   2. This matter is set for a Scheduling Hearing on February 21, 2017, at 9:00 a.m.

       ENTERED this the 22nd day of December, 2016.


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                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims

Scheduling Hearing:

       A Scheduling Hearing has been set with Judge Dale Tipps, Court of Workers’
Compensation Claims. You must call 615-741-2112 or toll free at 855-874-0473 to
participate.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Central Time (CT).


Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers’ Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal.”

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers’ Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of
      Indigency in accordance with this section shall result in dismissal of the
      appeal.


                                            7
5. The parties, having the responsibility of ensuring a complete record on appeal,
   may request, from the Court Clerk, the audio recording of the hearing for the
   purpose of having a transcript prepared by a licensed court reporter and filing it
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers’ Compensation
   Claims and must be approved by the workers’ compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant’s
   position statement. All position statements pertaining to an appeal of an
   interlocutory order 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.




                                         8
                                              APPENDIX

Exhibits:
   1. Records of Dr. Charles Kaelin
   2. Dr. Kaelin’s April 6, 2016 response to Traveler’s causation questionnaire
   3. Ashley Hayes-Beaty’s April 14, 2016 letter to Jonathan West
   4. Sandy Butkus’ April 16, 2016 letter to Mr. Smith
   5. C-23 Notice of Denial
   6. Wage Statement
   7. First Report of Injury
   8. Affidavit of Sean Smith
   9. Transcript of Recorded Statement of Sean Smith


Technical record:3
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




3
   The Court considered factual statements in these filings or any attachments to them as allegations unless
established by the evidence.

                                                     9
                                CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
 Denying Requested Benefits was sent to the following recipients by the following
 methods of service on this the 22nd day of December, 2016.


Name                Certified   Via   Fax        Via     Address
                    Mail        Fax   Number     Email

Isaac Conner,                                        X   iconner@masonjohnsonlaw.com
Employee Attorney
John Rucker, Jr.,                                    X   jrucker@ruckerlaw.com
Employer Attorney




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




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