                                                                                     FILED
                                                                                    Jul 01, 2019
                                                                                   02:55 PM(CT)
                                                                                TENNESSEE COURT OF
                                                                               WORKERS' COMPENSATION
                                                                                      CLAIMS




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

ANTHONY HAYES,                                )   Docket No. 2018-08-1204
         Employee,                            )
v.                                            )
ELMINGTON PROPERTY MGMT.,                     )   State File No. 56539-2018
         Employer,                            )
And                                           )
ACCIDENT FUND GENERAL INS.                    )   Judge Deana C. Seymour
CO.,                                          )
         Carrier.                             )


                           EXPEDITED HEARING ORDER


       The Court convened an Expedited Hearing on June 21, 2019, to determine whether
Elmington Property Management should be required to provide Mr. Hayes additional
temporary disability and medical benefits for injuries incurred in a workplace fall.
Elmington argued it owes no further temporary disability benefits but agreed he could
return to his authorized treating physician for treatment of injuries related to the fall. The
Court holds Mr. Hayes would not likely prevail at a hearing on the merits regarding his
claim for temporary disability benefits but may return to his treating physician for
reasonable and necessary treatment.

                                     History of Claim

       Mr. Hayes worked as a maintenance technician for Elmington. On July 27, 2018,
he injured multiple body parts at work when he fell from a raised dumpster platform
down to the concrete below. He reported his fall and received authorized treatment at an
emergency clinic. The clinic diagnosed Mr. Hayes with abrasions to his right hand,
contusions to his left knee and elbow, and a bruise and abrasion on the left side of his
head. The clinic placed him on light duty restrictions and referred him for orthopedic
treatment.




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       After receiving this referral, Mr. Hayes selected Dr. David Deneka from a panel.
Dr. Deneka conservatively treated Mr. Hayes’s left knee and placed him on restricted
duty from August 13 to September 17 before placing him at maximum medical
improvement. He assigned Mr. Hayes no permanent impairment for his left-knee injury
but indicated Mr. Hayes should return as needed if he had further problems.

       In this action, Mr. Hayes contended Elmington failed to provide adequate medical
treatment for all of his injuries. He specifically mentioned neck and back issues that were
not addressed and complained of numbness in his right hand and problems walking. Mr.
Hayes testified he advised his physicians of these issues.

        Mr. Hayes further argued that Elmington required him to work outside his
restrictions when he returned to light-duty work, which caused him further injury.

        Elmington stipulated that Mr. Hayes sustained a work-related fall on July 27 and
indicated he could return to Dr. Deneka for further treatment of his work-related injuries.
It contended, however, that it provided Mr. Hayes with all benefits to which he was
entitled. Elmington also claimed, as evidenced by the medical records, that Mr. Hayes
never mentioned neck or back issues before filing his Petition for Benefit Determination.

                       Findings of Fact and Conclusions of Law

        At an Expedited Hearing, Mr. Hayes must provide sufficient evidence to show he
is likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

        While the Court recognizes the medical records are silent concerning neck and
back complaints, the Court found Mr. Hayes’s testimony credible. He specifically
testified he advised his physicians of his neck and back issues. Furthermore, Dr.
Deneka’s records revealed that Mr. Hayes landed on his left side when he fell. The
emergency clinic records support this finding by documenting contusions to Mr. Hayes’s
left knee and left elbow as well as a bruise and abrasion on the left side of his head. These
records also indicate Mr. Hayes fell onto concrete. Based on this proof, the Court holds
Mr. Hayes is likely to prevail at a hearing on the merits concerning authorized medical
treatment for injuries related to the fall.

       Turning to Mr. Hayes’s request for temporary disability benefits, the Court finds
Mr. Hayes is not likely to prevail at a hearing on the merits. Mr. Hayes returned to light
duty work following his accident, so his recovery, if any, lies in temporary partial
disability benefits. Temporary partial disability benefits are payable whi le the
injured wo rker can resume some gainful employment but has not reached
maximum recovery. Barrett v. Lithko Contracting, Inc., 2016 TN Wrk. Comp. App.
Bd. LEXIS 70, at *8 (June 27, 2016). To prove entitlement to these benefits, Mr. Hayes


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must show his treating physician released him to return to work with restrictions before
maximum medical improvement and Elmington either (1) could not return him to work
within his restrictions or (2) could not provide restricted work for a sufficient number of
hours and/or at a rate of pay equal to or greater than his average weekly wage on the date
of his injury. See Jones v. Crenor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd.
LEXIS 48, at *7-8 (Dec. 11, 2015). Mr. Hayes presented no proof of income loss while
he worked in a light-duty capacity. As such, the Court holds Mr. Hayes is not likely to
prevail at a hearing on the merits for temporary disability benefits.

       IT IS, THEREFORE, ORDERED as follows:

       1.     Elmington shall set an appointment for Mr. Hayes with his authorized
treating physician, Dr. David Deneka, for treatment of his work-related injuries under
Tennessee Code Annotated section 50-6-204.

       2.     Mr. Hayes’s request for temporary disability benefits is denied.

       3.   This matter is set for a telephonic Status Hearing on August 26, 2019, at
9:00 a.m. Central Time. You must call toll-free at 866-943-0014 to participate in the
hearing.

       ENTERED July 1, 2019.


                                  ____________________________________
                                  Judge Deana C. Seymour
                                  Court of Workers’ Compensation Claims




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                                   APPENDIX

Technical record:

1.    Petition for Benefit Determination
2.    Dispute Certification Notice
3.    Request for Expedited Hearing with Mr. Hayes’s affidavit
4.    Show Cause Order
5.    Motion of Employer to Dismiss Employee’s Claim for Workers’ Compensation
Benefits and Memorandum of Law in Support of Same
6.    Employee’s Response to Motion of Employer to Dismiss Employee’s Claim for
Workers’ Compensation Benefits and Memorandum of Law in Support of Same with
attachments
7.    Order on Show Cause Hearing, Employer’s Motion to Dismiss, and Order Setting
Expedited Hearing
8.    Employer’s November 2, 2018 letter to Bureau mediator

Exhibits:

1.    Employer’s First Report of Work Injury or Illness
2.    Wage Statement
3.    Employee’s Choice of Physician
4.    Employment Offer Letter
5.    Two photographs of location where injury occurred
6.    Twelve photographs representing the areas Mr. Hayes was asked to clean
      (Collective)
7.    Four photographs of Mr. Hayes’s injuries (Collective)
8.    Employee Statement of Incident
9.    Employee’s Answers to Employer’s First Set of Interrogatories and Request for
      Production of Documents
10.   Medical records from OrthoMemphis (Collective)
11.   Medical records from Methodist Healthcare Minor Medical Centers (Collective)




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                             CERTIFICATE OF SERVICE

       I certify that a correct copy of this Order was sent to these recipients as indicated
on July ____,
         1st 2019.

 Name                        Certified Via       Via      Service sent to:
                             Mail      U.S.      Email
                                       Mail
 Anthony Hayes,                 X        X                General Post
 Employee                                                 555 South 3rd Street
                                                          Memphis, TN 38101-9998
 Stephen P. Miller,                                 X     smiller@mckuhn.com
 Employer’s Attorney


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




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