## FILED Jan 31, 2020 11:01 AM(ET) TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS



### TENNESSE BUREAU OFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATION CLAIMS AT CHATTANOOGA JeffreyJones, Employee, 

### v. ColumbusMcKinnon Corp., Employer, And SafetyNational Casualty Corp., Carrier. ) DocketNo.: 2019-01-0024 ) ) 

### ) StateFile No.: 3286-2019 ) ) 

### ) Judge Thomas Wyatt )



### EXPEDITED HEARING ORDERDENYINGREQUESTED BENEFITS

This Expedited Hearing concerned two issues: (1) whether Jeffrey Jones gave Columbus McKinnon Corp. (CMC) satisfactory notice ofan alleged May 10, 2018 work injury; and (2) ifthe claim is not barred by lack ofnotice, whether Mr. 

### Jones's current symptoms arise from a 2014 amputation or a new work-related injury. For the reasons below, the Court holds that Mr. 

### Jones did not establish entitlement to the requested benefits. History
In

### 2014, Mr. 

### Jones suffered partial amputation injuries to his right index and long fmgers while working at CMC. He underwent surgery and eventually returned to work. Later he settled his claim with open medical benefits under hand surgeon Dr. Mark Brzezienski's care. On May 10, 2018, Mr. 

### Jones experienced right upper-extremity pain while handling parts at CMC. He testified that, although he had experienced residual pain in his amputated fmgers and his palm since his return to work, the pain he felt on May 1 0

1

### was something "henever felt before." Mr. Jones described the pain as radiating from his hand down his arm into his elbow. 1



### Mr. Jones testified that he reported his pain to CMC supervisor Kevin Schlageter. He initially stated that he told Mr. Schlageter "what happened," but conceded on crossexamination that he did not explain how he got hurt. Mr. Schlageter took Mr. Jones to Stephen Byer, who handles CMC's workers' compensation·claims. Mr. Byer then obtained an appointment for Mr. Jones to see Dr. Brzezienski under his 2014 claim. Mr. Byer testified that neither Mr. Jones nor Mr. Schlageter told him that Mr. Jones was claiming a new workinjury.
OnMay 18, Mr. Jones saw a provider at UT Family Practice for his pain. He saw Dr. Brzezienski approximately three weeks later. Neither provider noted that Mr. Jones reported suffering an injury on May 10. Dr. Brzezienski diagnosed carpal tunnel and Guyon's canal syndromes and recommended surgery. CMC approved the surgeries as treatments associated with

### Mr. Jones's amputation injury. Mr. Jones declined to undergo theprocedures "onthe advice ofcounsel."
Mr. Jones filed a Petition for BenefitDetermination seeking a panel fromwhichto select a physician to treat his May 2018 injury.2 

### He didnot submit medical evidence in support ofthis claim. CMC arguedthat Mr. Jones's claim is barred for lack ofnotice, but also submitted Dr. Brzezienski's deposition testimony in defense ofits position that Mr. Jones's complaints stemfrom his 2014 injury.
On the issue of causation, Dr. Brzezienski testified that Mr. Jones experienced normal post-operative pain in his right hand and amputated fmgers. His January 2015 note indicated that Mr. Jones reported significant "dysethesias" (altered sensation) in his righthand. HeplacedMr. Jones atmaximummedical improvementinMarch 2015.
Mr. Jones did not see Dr. Brzezienski again until February 2017, when Mr. Jones reported that, for the past several months, he had experienced intermittent pain in the right forearm and pain and tingling in his right hand. Dr. Brzezienski's notes did not include a reported new injury, and he testified that he related the described symptoms to the amputation injury.
Mr. Jones next saw Dr. Brzezienski on June 12, 2018, approximately four weeks after the asserted May 10 injury. He reported "funny feelings in his hand [and] significant dysesthesias[.]" Dr. Brzezienski described Mr. Jones's symptoms as "carpal

1 The affidavit Mr. Jones signed in support ofhis Request for Expedited Hearing did not mention elbow rain.

Mr. Jones also sought temporary disability benefits in his PBD. That issue is not before the Court becausetheDispute CertificationNotice did not certifY it for adjudication. 2tunnel syndrome symptoms." He did not note that Mr. Jones related his symptoms to a newwork injury. Dr. Brzezienski testifiedthat the symptoms Mr. Jones reported on June 12 differed from those reported in 2017 because the tingling was more severe and Mr. Jones did not previously report forearm and hand pain. However, Dr. Brzezienski causally related these "carpal tunnel syndrome symptoms"to Mr. Jones's amputation, stating:
When you have an amputation ofthe bones ofyour fingers, the tendons actually draw back into your palm. So the pathophysiology of carpal tunnel syndrome is compression of the median nerve in the compartment, in the carpal tunnel. If your tendon draws back and bunches up in the carpal tunnel, they create a volume situation which is frequently seenin amputationpatients.
On cross-examination, Dr. Brzezienski testified that Mr. Jones's repetitive work with his right hand "could exacerbate his underlying problem." However, he further explained that "it was no surprise to me that he came back with median nerve compression" because he had reported similar symptoms post-surgery. When asked to assume that Mr. Jones's May 10 symptoms were precipitated by repetitive work activity, Dr. Brzezienski responded that he could not separate amputation-related symptoms from those causedbyrepetitive work. However, he did not changehis causation opinion.3
Findings ofFact and Conclusions ofLaw


### GeneralLegalPrinciples
Mr. Jones must come forward with sufficient evidence from which the Court can determine he is likely to prevail at a hearing onthe merits. 

### See Tenn. Code Ann. 

### § 50-6- 239(d)(l) (2019); 

### McCord v. 

### Advantage Human Resourcing, 2015 TN Wrk. Comp

. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). When causation is at issue, he must show that his alleged injuries arose primarily out of and in the course and scope of employment. This includes showing "to a reasonable degree of medical certainty that [the work incident] contributed more than fifty percent (50%) in causing

... disablement or need for medical treatment, considering all causes." "Shownto a reasonable degree ofmedical certainty" means that a physicianmustgive a causation opinionusing a "more likely than not" standard, as opposed to speculation or possibility. Injuries that aggravate preexisting conditions are compensable ifthe aggravation arose primarily out ofand in the
course and scope ofemployment. 

### See Tenn. Code Ann.§ 50-6-102(14).

3 Dr. Brzezienski also testified that Mr. Jones might have developed deQuervain's tendonitis in his postamputation handbut statedthatthis condition had resolved. He additionally concluded thatMr. Jones did nothave cubital tunnel syndrome, eventhough the nerve conduction study showedpositive findings. 3

### Notice
The Workers' Compensation Law mandates that "[e]very injured employee

... shall, immediately upon the occurrence ofan injury, or as soon thereafter as is reasonable and practicable, give or cause to be given to the employer who has no actual notice, written notice ofthe injury." Tenn. Code Ann. § 50-6-201. Mr. Jones claimed that he gave CMC management notice ofhis new injury right-upper-extremity injury onthe date it occurred. CMC countered that Mr. Jones only reported that he was experiencing pain; he did not report a new injury. Thus, CMC said itjustifiably scheduled an appointment with the physician authorized to treat his amputations. Forthese reasons, CMC asserted thatMr. Jones's claimthathe sustained a new injury to his right upper extremity on May 10, 2018, mustfail for lackofnotice.
In considering this issue, the Court recognizes that Mr. Jones testified on direct examination that he told CMC management how he allegedly hurt his right upper extremity in May 2018. However, he retreated from that testimony on crossexamination. For that reason, the Court gives more weightto Mr. Byer's testimony. He testified thatneitherMr. Jones norMr. Schlagetertoldhim thatMr. Jones claimed a new work injury. Thus, Mr. Byer scheduled an appointment withDr. Brzezienski. The Court also notes that neither UT Family Practice nor Dr. Brzezienski recorded that Mr. Jones gave a history ofinjuring his right arm at work on May 10. In view ofthe above, the Courtholds thatMr. Jones will notlikely prevail attrial in establishingthathe gave CMC notice ofsustaining a newright-upper extremity injury onMay 10,2018.
However, the above holding does not end the notice issue. The notice statute also requires the employer to show prejudice before a lack ofnotice can form the foundation ofa denial ofbenefits. 

### See Tenn. Code Ann. § 50-6-201(a)(3); 

### Buckner v. 

### Eaton Corp., 2016 TN Wrk. Comp. App. Bd. LEXIS 84, at *11-12 (Nov. 9, 2016). Here, CMC failed to establish it will likely prevail at trial in showing prejudice. In support, the Court notes that Mr. Jones informed CMC management that he claimed he could not work due to pain. This notice caused CMC to send Mr. Jones to Dr. Brzezienski, who provided a causation opinion favorable to its position.


### Causation
The only causation opinion before the Court is Dr. Brzezienski's. While Mr. Jones's cross-examination might have caused him to equivocate slightly, it is still clear that the doctor concluded that Mr. Jones's current symptoms relate to his amputation injury. Even had Mr. Jones negated Dr. Brzezienski's opinion, which he did not, the Court could not rule in Mr. Jones's favor because he did not come forward with a medical opinionthathe sustained a newwork-related injury.

4The Court holds that Mr. Jones has not met his burden ofestablishing that he will likely prevail at trial on causation. Thus, the Court denies Mr. Jones's request for medical benefits at this time. While he might be entitled to medical benefits under the settlement ofthe 2014 amputation injury, the Court cannot award him those benefits in this claim.



### IT 

### IS, THEREFORE, ORDERED as follows:
1. Mr. Jones is not entitledto the requestedbenefits.

2. This case is set for a Status Hearing at 

### 10:30 a.m. Eastern Time on May 1, 2020. The parties must call (615) 741-3061 or toll-free at (855) 747-1721 to participate. Failure to call in might result in a determination ofthe issues without your further participation.


### ENTERED January31, 2020.

# Jud**f!Z::w{J /l** **~** Court ofWorkers' Compensation Claims
APPENDIX
Exhibits: The Court admitted the following exhibits into evidence during the Expedited Hearing:
1. Affidavit ofJeffrey Jones 2. Records ofUTFamilyPractice 3. Records ofDr. MarkBrzezienski 4. Transcript ofDr. Brzezienski's deposition 5. LettertoDr. Brzezienskiwithhis handwrittenresponses 6. Records ofErlangerMedical Center (operativereport) 7. FirstReport ofInjury 8. 2017 Settlement Order 4 9. SummaryJudgment orders 10.Declaration ofBrittney Simmons 11.Excerpts from thetranscript ofthe deposition ofJeffrey Jones.

4 Mr. Jones objected to exhibits 3 through 8 on the grounds that his treatment from Dr. Brzezienski was irrelevantto his new injury. The Courtoverruledthe objections. 5

### Technical record: The Court consideredthe following filings:
1. Petition for BenefitDetermination 2. Dispute CertificationNotice 3. Request for Expedited Hearing filed July 3, 2019 4. Request for ExpeditedHearing filed October 16, 2019 5. Order SchedulingExpeditedHearing 6. Notice ofExpeditedHearing 7. EmployerWitness List 8. EmployerPosition Statement 9. EmployerPre-Hearing Statement 10.EmployerNotice ofFiling 11.Employee Position Statement.
CERTIFICATE OF SERVICE


### I certify that a copy ofthe Orderwas sent as indicated onJanuary 31 , 2020.
Name Certified Email Service sentto: Mail Kent T. Jones X 

### Joneslaw08@gmail.com Employee's Attorney Robert J. Uhorchuk X 

### rju@spicerfinn.com Employer's Attorney kburke

_

@s_Q_icerfinn.com

# / Penny 

# ShrUIII:CourtCiel'k Wc.courtclerk@tn.gov



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