1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT JACKSON

ROBERT J. B LA NK , ) Docket No s
. 2018

- 07

- 0725 and

Employee, ) 2021

- 07

- 0329

v. )

ES TES EXPRESS LINES ,

Employer , a nd, NEW HAMPSHIRE INS. CO.,

Carrier , ) ) ) ) ) State File Nos. 68179

- 2018 and 800401

- 2021

and ) ABIGAIL HUDGENS, as ADMINISTRATOR of the BUREAU OF WORKERS’ COMPENSATION, SUBSEQUENT INJURY & VOCATIONAL RECOVERY FUND

. ) ) ) ) ) Judge Allen Phillips

COMPENSATION ORDER GRANTING SUMMARY JUDGMENT

On November 23, 2021, the Court heard Estes’s Motion for Summary Judgment in Docket Number 2021

- 07

- 0329 on grounds that Mr. Blank failed to file a timely claim for

a May 29, 20 19 left

- shoulder injur y. T he Court agrees and grants the motion.

Facts

On August 30, 2018, Mr. Blank injured his left shoulder

, and Estes provided medical benefits including surgery by Dr. Jason Hutchison

. Dr. Hutchison released Mr. Blank on May 15, 2019

, without restrictions. Mr. Blank timely filed a Petition for Benefit Determination for that injury, and it is not at is sue here.

Mr. Blank returned to work at Estes and on May 29, 2019

, felt pain in his left shoulder when he lifted a table . He told his supervisor that he “hurt” his shoulder

, and Estes completed a First Report of Injury

. Mr. Blank also completed a claim fo rm

. 

### FILED Dec 08, 2021 08:44 AM(CT)

TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS2

After the May 29 incident, Estes provided an evaluation with Dr. Hutchison

, and Mr. Blank told him that he felt pain when lifting the table

. Later, Dr. Hutchison referred Mr. Blank to his partner, Dr. Adam Smith

, who performed a second shoulder surgery. Estes paid medical and temporary disability benefits for th e May 29 incident , the last payment being made on May 26, 202 0

. The parties deposed Mr. Blank

, Dr. Hutchison

, and Dr. Smith. Of importance here,
t hey deposed Dr. Hutchison on Ju ly 26, 2021.
Particularly, a fter Dr. Hutchison’s deposition on July 26

, Mr. Blank filed another petition in which he stated:
Today, July 26, 2021, is the first time I became aware that Dr. Hutchison
t estified I had a “new” injury to my l eft sh oulder . Dr. Adam Smith oper ated on my l eft sh oulder the sec ond time and testified that it was not a new injury, but a wor se nin g of my first injury. There has been no 1 st report of Work in jury filed for the date of the “ne w” injury.

Estes disputed those allegations. It contend ed Mr. Blank did not become aw are of a “new” injury on July 26

, but instead knew he had a n injury when he lifted the table

. Estes argued Mr. Blank knew of the injury because he report ed it th e same da y , he knew a first report was completed

, and he told Dr. Hutchison about the injury shortly afterwards

. Additionally, Mr. Blank told two other providers that he “injured” his shoulder when lifting the ta ble

, and he sent discovery requests to Estes that referenced the May 29 date

. For his part, Mr. Blank agreed with Estes’s statement of the facts except for its

c har acterization of the May 29 incident as a new “injury.” Instead, he said that he merely felt a “ pull” in his shoulder when lifting the table, but he did not know if it was a new injury
or not. H e also claimed that he told the providers he felt pain

, not that he had a new injury

, and he added that the first report of injury documented that he felt a pull in his shoulder.

Mr. Blank also submitted his own s tatement of facts

. H e asserted that he continued having sh oulder prob lems after Dr. Hutchison’s surgery “right up until” he was released to work in May 2019. Then on May 29 , as he testified in his deposition, he “ bent down to pick [the table] up and stand it up on its end and I got, you know, so far up it just pulled it loose, I guess, I don’t know what it did.”

Further, Mr. Blank noted Dr. Smith ’s testi mony that h e didn’t know what necessitated the need for the second surge ry, “ because what [he] saw in there was degeneration of the shoulder[.]” Dr . Smith additionally s tated

, “ when you have a rotator cuff tear, it can create a cascade of events that leads to deterioration in the shoulder

, ” and he thought th e second s urgery was related to the deterioration “from the surg ical t reatment and the injury.”3 Estes ’s Position

Estes contended it was entitled to summary judgment because Mr. Blank did not file his second petition until July 26, 2021

. Specifically, Estes argued that Tennessee Code Annotated section 50

- 6

- 203(b)(2) required Mr. Blank to file a petition within one year after Estes ceased paying benefits for the new injury , on or before May 26, 2021.

F urther, Est es arg ued Mr. Blank could not rely on the so

- called “discovery rule ” as defined in Arnold v. Cou rtyard Mgmt. Corp ., No. 2015

- 02266

- SC

- WCM

- WC, 2016 Tenn. LEXIS 648, at *9 ( Tenn. Workers’ Comp. Panel Sept. 28, 2016) . There, the P an el explained that “ the limitation period does not begin to run until an e mployee discovers or, in the exercise of reas onable di ligence , should have disco v e red ” that he has a n injury

. Estes argued that b ecause Mr. Blank knew he sustained an injury on May 29, h e did not “discover” it on July 26, 2021

, as he alleged. Estes also cited Jenkins v. Goodyear Tire & Rubber Co.

, No. W2014

- 02303

- SC

- R3

- WC, 2016 Tenn. LEXIS 175, at *8

- 10 ( Tenn. Workers’ Comp. Panel Mar. 15, 2016) for the proposition that a physician ’s causation
op inion is not needed in every ca se b efore the s tatute of limitations commences.

Contrary to Mr. Blank’s assertion, Estes contended the se f acts are con sistent with the Appeals Board’s statem ent in Nickerson v. Knox Co. Gov’t

, 2020 TN W rk. Comp. App. Bd. LEXIS 52, at *12 (Sep t . 9, 2020) that, “the date of injury has consistently been identified as the date of the work incident precipitating the injury regardless of when the employee became aware of the injury.”

Mr. Blank ’s Position

Mr. Blank counter ed that “the time at whi ch an employ ee has act ual or constr uctive know ledge of his w orkers compensation claim is a quest ion of fact .” Banks v. UPS , 170 S.W.3d 556, 562 (Tenn. 2005) (Mr. Blank’s emphasis). He cited three pre

- Reform Act hearing loss cases where the respective Panel s held that the s tatute of limitations was tolled until the employ e e s learned from a physician that their hearing losses were work

- relat ed

.

Mr . Blank argued that because neither Dr. Hutchison n or Dr. Smith “ever adv ised [him ] t hat he su stained a new inj ury ” on May 26, 2019

, there is a quest ion of fact as to when he knew he sustained a new injury.

Subsequent Injury Fund’s Position

The Fund joined in Es tes’s position that the statute of limitations expired one year after the last payment of benefits

, and the discovery rule does not apply.

Analysis

Estes is entitled to summary judgment if it show s there are no genuine issue s of4

material fact

. Tenn. R. Civ. P. 56.04 (20 21 ). It must do one of two things to prevail: 1) submit affirmative evidence that negates an essential element of Mr. Blank’ s claim, or 2) demonstrate that his e vidence is insufficient to establish an essential element of his claim. Rye v. Women’s Care Ctr. of Memphis, MPLLC , 477 S.W.3d 235, 264 (Tenn. 2015).

Under Tennessee Code Annotated section 50

- 6

- 203(b)(2), Mr. Blank’s claim for benefits for the second injury is barred unless he filed a Petition for Benefit Determination within one year of when Estes cease d paying benefits

. Because he did not do so, his claim for a second injury only survives if the discovery rule applies

. The Court finds the discovery rule does not appl y , and that the correct date of injury is May 29, 2019

.
Specifically , t he Court agrees with Estes that the se facts fit within Nickerson

, namely that the date of injury is the date of the incident precipitating it rather th an the date when the employee subjectively becomes aware of it

. This finding is also consistent with Arnold

, where the Panel addressed the discovery rule in the context of summary judgment

. Th ere, the Panel specifically stat ed the discovery rule does not apply whe n the employ ee suffer s an acute injury

, and it reversed a denial of summary judgment where the trial court found the rule did apply

. Id. at *9.

T h e se facts are also in line with Joiner v. UPS

, M2018

- 01876

- SC

- R3

- WC, 2019 Tenn. LEXIS 522 (Tenn. Workers’ Comp. Panel Dec. 6, 2019)

, where the Panel held the date of injury was the date the employee felt pain when lifting a mailbag. Here, Mr. B lank felt shoulder pain when lifting the table

. In another case involving an acute injury, the Appeals Board found the employee could not toll the s tatute of limitations by claiming he

was unaware of the full extent of the injury

. Johnson v. Stanley Convergent Secr. Sys., 2017 TN Wrk. Comp. App. Bd. LEXIS 44, at *9 (Aug. 3, 2017). In Johnson , the employee said he felt something “pull loose” when he tried to move his shoulder. Id . at *12. Mr. Blank said the same and also relied upon his alleged lack of knowledge as to the full extent of his injury to toll the statute.

Contrast these facts with Banks and the hearing loss cases cited by Mr. Blank

. In Banks , the employee suffered pain while working b ut recalled no specific incident. Wh ile
treat ing , he questioned whether his injury might have been work related

, and a physician confirmed it was

. The discovery rule protected the Banks employee because he knew of no specific incident

. Conversely, Mr. Blank knew of a specific inc ident

, and he cannot rel y on the dis covery rule.

Likewise, i n the hearing loss cases, the respective Panels found the employee’s limitation periods were tolled until a doctor told th e m that th eir hearing losses were work

related. In contrast

, Mr. Blank knew of a specific injury on May 29

, and his lack of knowledge, if any, as to the extent of his injury provides no solace.

Thus, the Court finds Estes is entitled to summary judgment b ecause it demonstrate d Mr. Blank’s e vidence is insufficient to establish an essential element of his claim ;5

specifically

, he did not file a claim for the May 29, 2019 injury within the applicable statute of limitations.

The Court previously consolidat ed the two pet itions

. T his order is final under Tennessee Rules of Civil Procedure 58 only for the petition Mr. Blank filed on July 26, 2021 and bearing Docket Number 2021

- 07

- 0329. The claim for the August 30 , 2018 injury, bearing Docket Number 2018

- 07

- 0725, remains pending

. THEREFORE, IT IS ORDERED AS FOLLOWS :

1. The Court grants Estes’s Motion for Summary Judgment in Docket Numbe r 2021

- 07

- 0329

.
2. Mr. Blank’s petition for the August 30 , 20 18 injury, Docket Number 2018

- 07

- 0725

, remains pending.

ENTERED December 8 , 20 21

.

_____________________________________ JUDGE ALLEN PHILLIPS Court of Workers’ Compensation Claims

C ERTIFICATE OF SERVICE

I certify that a copy of th is Order was sent as indicated on December 8 , 20 21

.

Name Email Service sent to: Jeffrey P. Boyd

, Employee’s Attorney X jboyd@borenandboyd.com ataylor@borenandboyd.com Kenneth Veit and Kate Patton

, E mployer’s Attorney s X k enny.veit@leitnerfirm.com kate.patton@leitnerfirm.com crystal.brown@leitnerfirm.com Art D. Wells , SIVRF Attorney X art.wells@tn.gov

_____________________________________ Penny Shrum, Court Clerk Court of Workers’ Compensation ClaimsCompensation Hearing Order Right to Appeal :

If you disagree with this Compensation Hearing Order, you may appeal to the Workers’ Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’ Compensation Appeals Board, you must:

1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the date the compensation hearing order was filed. When filing the Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if represented).

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar days after filing of the Notice of Appeal. Payments can be made in

- person at any Bureau office or by U.S. mail, hand

- delivery, or other delivery service. In the alternative, you may file an Affidavit of Indigency (form available on the Bureau’s website or any Bureau office) seeking a waiver of the filing fee. You must file the fullycompleted Affidavit of Indigency within ten calen dar days of filing the Notice of Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will result in dismissal of your appeal.

3. You bear the responsibility of ensuring a complete record on appeal. You may request from the cou rt clerk the audio recording of the hearing for a $25.00 fee. A licensed court reporter must prepare a transcript and file it with the court clerk within fifteen calendar days of the filing the Notice of Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both parties within fifteen calendar days of the filing of the Notice of Appeal. The statement of the evidence must convey a complete and accurate account of the hearing. The Workers’ Compensation Judge must approve the statement of the evidence before the record is submitted to the Appeals Board. If the Appeals Board is called upon to review testimony or other proof concerning factual matters, the absence of a transcript or statement of the evidence can be a significant obstacle to meaningful appellate review.

4. After the Workers’ Compensation Judge approves the record and the court clerk transmits it to the Appeals Board, a docketing notice will be sent to the parties. The appealing party has fifteen calendar days aft er the date of that notice to submit a brief to the Appeals Board. See the Practices and Procedures of the Workers’ Compensation Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing Order must be final an d you must comply with the Tennessee Rules of Appellate Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s Order will become final by operation of law thirty calendar days after entry. See Tenn. Code Ann. § 50

- 6

- 239(c)(7).

For self

- represented litigants: Help from an Ombudsman is available at 800

- 332

- 2667.NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries

- at

work/ wc.courtclerk@tn.gov | 1

- 800

- 332

- 2667

Docket No.:

________________________ State File No.:

______________________ Date of Injury: _____________________

___________________________________________________________________________ Employee

v.

_______________________________ ____________________________________________ Employer

Notice is given that ____________________________________________________________________ [List

name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date filestamped on the first page of the order(s) being appealed):



### □ Exped ited Hearing Order filed on _______________ 

### □ Motion Order filed on ___________________



### □ Compensation Order filed on__________________ 

### □ Other Order filed on_____________________ issued

by Judge __________________________________________________________
_______________.

Statement of the Issues on Appeal Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

________________________________________________________________________________________

________________________________________________________________________________________

____________________________________________________________________________ ____________

________________________________________________________________________________________

Parties Appellant(s) (Requesting Party): _________________________________________ ☐ Employer ☐ Employee Address: _____________________________________ ___________________ Phone: ___________________ Email: __________________________________________________________ Attorney’s Name: ______________________________________________ BPR#: _______________________ Attorney’s Email: _________________________ _____________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellant *LB

- 1099 rev. 01/20 Page 1 of 2 RDA 11082 Employee Name: _______________________________________ Docket No.:

_____________________ Date of Inj.: _______________

Appellee(s) (Opposing Party): ____

_______________________________________ ☐ Employer ☐ Employee Appellee’s Address: ______________________________________________ Phone: ____________________ Email: _________________________________________________________ Attorney’s Name: ________________ _____________________________ BPR#: ________________________ Attorney’s Email: _____________________________________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________

* Att ach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a true and exact copy of this Notice of Appeal by First Class mail, postage prepa id, or in any manner as described in Tennessee Compilation Rules & Regulations, Chapter 0800

- 02

- 21, to all parties and/or their attorneys in this case on this the __________ day of ___________________________________, 20 ____.

___________________________ _________________

__ [Signature of appellant or attorney for appellant]LB

- 1099 rev. 01/20 Page 2 of 2 RDA 11082