1

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MURFREESBORO

DAVID BUCHER ) Docket No.: 2015

- 05

- 0184

Employee, )

v. ) State File Number: 43268

- 2015 DIVERSCO/ABM INDUSTRIES, INC. )

Employer, ) Judge Dale Tipps

A nd )

ESIS )

Insurance Carrier

. ) )

EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS

This matter came before the undersigned workers’ compensation judge on the Request for Expedited Hearing filed by the employee, David Bucher , pursuant to
Tennessee Code Annotated section 50

- 6

- 239 (2014). The presen t focus of this case is the compensability of Mr. Bucher’s hernia claim . The central legal issue is whether Mr. Bucher suffered a hernia arising primarily out of and in the course and scope o f his employment

. For the reason s set forth below, the Court finds Mr. Bucher is entitled a medical evaluation to determine the causation of his injury.

History of Claim

Mr. Bucher is a sixty

- year

- old resident of Coffee County , Tennessee. ( See PBD.) He testified he began working for Diversco in August 2014. On A pril 14, 2015, he was lifting five

- gallon buckets at work when he felt a pain in his groin. (Ex. 1 at 3.) He reported the pain to his supervisor, A. J. Perkins, before going home. Id. He t estified he

missed some work due to sickness and returned on A pril 17, 2015. He told Mr. Perkins he was hurting, so Mr. Perkins told him to go the hospital in Murfreesboro. Mr. Bucher went to the emergency room at St. Thomas Rutherford Hospital. When he continued to have problems, Mr. Perkins tol d Mr. Bucher to go to Vanderbilt Medical C enter in

Nashville

.

Mr. Bucher subsequently experienced severe groin pain and called an ambulance

to transport him to Manchester Medical Center. There he saw Dr. James VanWinkle,2

who recommended surgery

. Diversco refused to authorize the operation . Mr. Bucher has not had surgery, and Diversco has not returned him to work.

Mr. Perkins testified he was Mr. Bucher’s supervisor at Diversco, and they worked together on the prep crew at a casket manufacturer. The crew’s responsibilities included cleaning and taking care of the pain t department. O n April 13, 2015, Mr. Perkins went to the supply room, where he found Mr. Bucher in pain and holding his side. He asked Mr

. Bucher if he was injured on the job, but Mr. Bucher would not answer the question

. Mr. Bucher worked to the end of his shift, but did not return to work until April 17, 2015.

Mr. Perkins discussed the cause of Mr. Bucher’s symptoms with him several times over the next few days. Mr. Bucher suffered from a virus at the time

, and indicated he might have strained himself while vomiting. Mr. Perkins felt Mr. Bucher might have injured himself on the job and asked again whether that w ere pos sible. Mr. Bucher initially said no, but later said he might have. Mr. Perkins testified Mr. Bucher eventually told him he injured himself lifting buckets at work, but was afraid he would lose his job if he reported the injury. Mr. Bucher still had pain and a bulge in his groin.

Mr. Perkins thought Mr. Bucher might have a hernia and suggested he go to the hospital.

Medical Center of Manchester admitted Mr. Bucher on May 8, 2015 , for complaints of nausea, vomiting, right

- lower quadrant pain, and weigh t loss, all of which began three weeks earlier. (Ex. 3 at 1

- 2.) While at Medical Center of Manchester, Mr.

Bucher saw Dr. VanWinkle for a surgery consultation on May 9, 2015. He reported his abdominal pain “started on April 14 th , and he states he lifts buckets at work.” Dr. VanWinkle noted that Vanderbilt told Mr. Bucher he had an inguinal hernia, but he did

not see evidence of that in the medical record. Dr. VanWinkle could not palpate a hernia and felt Mr. Bucher most likely had a muscle strain or possibly constipation. He acknowledged, however, the possibility of a small hernia that is difficult to palpate. Id . at
4

- 5.

The Medical Center of Manchester May 11, 2015 discharge summary includes

information from the records of several other providers . Vanderbilt Medical Center records documented Mr. Bucher’s evaluation in the emergency room on April 19, 2015. His examination at Vanderbilt was consistent with a small right inguinal hernia , which

ultrasound confirmed. Mr. Buche r went to the St. Thomas Rutherford emergency room on April 22, 2015, with similar symptoms and was referred to a surgeon, Dr. Robert Durgin. Mr. Bucher saw Dr. Durgin the next day and received an inguinal block. Id . at
2.

Dr. VanWinkle followed up wit h Mr. Bucher in his office on May 15, 2015, for complaints of right inguinal pain. (Ex. 2 at 1.) Mr. Bucher reported pain in his right groin since injuring himself at work. Dr. VanWinkle palpated a right inguinal hernia and

said it needed surgical repai r. Id. at 2.3 Findings of F act and Conclusions of Law

The Workers’ Compensation Law shall not be remedially or liberally construed in favor of either party but shall be construed fairly, impartially and in accordance with basic principles of statutory construction favoring neither the employee nor employer. Tenn. Code Ann. § 50

- 6

- 116 (2014). T he employee in a workers’ compensation claim has the burden of proof on all essential elements of a claim. Tindall v. Waring Park Ass’n, 725 S.W.2d 935, 937 (Tenn. 1987); 1 Scott v. Integrity Staffing

Solution s, No. 201 5

- 01

- 0055 , 2015 TN Wrk. Comp. App. Bd. LEXIS 24

, at *6 (Tenn. Workers’ Comp. App. Bd. Aug. 18, 2015 ). A n employee need not prove every element of his or her claim by a preponderance of the evidence in order to obtain relief at an expedited hearing. 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). At an expedited hearing, an employee has the burden to come forward with

sufficient evidence from which the trial court can determine that the employee is likely to prevail at a hearing on the merits. Id.

In order for an injury to be compensable, it must be accidental. Under the Tennessee Workers’ Compensation Law, an injury is accidental “only if the inju ry 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

- 102(13)(A) (2014). “An injury ‘arises primarily out of and in the course and scope of employment’ only if it has been shown by a preponderance of the evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes[.]” Tenn. Code Ann. § 50

- 6

- 102(13)(B) (2 014).

The Court notes that Mr. Bucher is a poor historian and had difficulty presenting his case. However, the Court finds that Mr. Bucher appeared steady, forthcoming,

reasonable

, and honest, which characteristics, according to the Tennessee Supreme Cou rt, are indicia of reliability. See Kelly v. Kelly, 445 S.W.3d 685, 694

- 695 (Tenn. 2014). Mr.
Bucher’s affidavit states he was lifting five

- gallon buckets at work on April 14, 2015, when he felt a pain in his groin. This is consistent with the history he gave at Vanderbilt Medical Center five days later and with what he told Dr. VanWinkle about his work and the onset of his symptoms

. Mr. Perkins testi fied he found Mr. Bucher in pain on April 13, 2015

, 2 and Mr. Bucher subsequently told him he had a bul ge in his abdomen

. The

1 The Tennessee Workers’ Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme Court “unless it is evident that the Supreme Court’s decision or rationale relied on a remedial interpretation of pre

July 1, 2014 statutes, that it r elied on specific statutory language no longer contained in the Workers’ Compensation Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory

amendments.” McCord v. Advantage Human Resourcing

, No. 2014

- 06

- 0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, *13 n.4 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015)

. 2 The discrepancy in the injury date is not significant and might be explained by Mr. Perkins’ testimony regarding
the third shift, to which both he and Mr. Bucher belonged. He testified that the third shift began late every evening4

Court finds that Mr. Bucher appears likely to carr y his burden of proving a specific injury

- causing incident occurring in the course of his employment.

Diversco correctly assert ed that Mr. Bucher has not carried his burden of proving that his injury arose primarily out of his employment. However, the missing element is

medical causation. The Court holds that it is not necessary for Mr. Bucher to prove
medical causation at this time in order to r eceive temporary medical benefits. Enforcing such a high burden early in his claim would yield the unreasonable result of prohibiting

Mr. Bucher from receiving authorized medical care for his condition without first securing an expert opinion on medical c ausation. As t he Workers’ Compensation Appeals Board has held:

[A] n employee need not prove each and every element of his or her claim by a preponderance of the evidence at an expedited hearing to be entitled to temporary disability or medical benefits, but must instead present evidence sufficient for the trial court to conclude that the employee would likely prevail at a hearing on the merits in accordance with the express terms of

section 50

- 6

- 239(d)(1). A contrary rule would require many injured

worke rs to seek out, obtain, and pay for a medical evaluation or treatment before his or her employer would have any obligation to provide medical

benefits. The delays inherent in such an approach, not to mention the cost barrier for many workers, would be inc onsistent with a fair, expeditious,

and efficient workers ’ compensation system. See Tenn. Code Ann. § 4

- 3

- 1409(b)(2)(A) (2014).

McCord

, 2015 TN Wrk

. Comp

. App

. Bd

. LEXIS 6, at * 9

- 10

.

Tennessee law requires an employer to provide “free of charge to the employee such medical and surgical treatment

. . . made reasonably necessary by accident as defined in this chapter[.]” Tenn. Code Ann. § 50

- 6

- 204(a)(1)(A) (2014). Mr. Bucher has an injury. At this point, however, it is unclear from a medical standpoint, whether his work caused the injury. Mr. Bucher has a right to a causation opinion to determine

whether his condition is a work

- related injury. The Court, therefore, finds that Diversco must provide Mr. Bucher an additional medical evaluation in order that an authorized physician may provide an opinion on medical causation. If medical causation is

established

, Diversco shall provide continuing, reasonable and ne cessary care, with the

a uthorized physician.

Diversco provided a panel of physicians on June 24, 2015 (Ex. 7 ), but never authorized any treatment and subsequently denied Mr. Bucher’ s claim

. Therefore, he

and worked through to the next morning. However, for record

- keeping, an employee’s work day was identified as the date the shift started, regardless of the hours the e mployee worked during the same shift after midnight.5

sought continuing medical care on his own
, culminating with Dr. VanWinkle’s determination that Mr. Bucher has a right inguinal hernia in need of surgical repair

. Where an employer fails to give the employee the opportunity to choose the ul timate treating physician from a panel of at least three physicians, it runs the risk of having to pay the reasonable cost for treatment of the employee ’ s injuries by a physician of the employee ’ s choice. Lindsey v. Strohs Companies, Inc. , 830 S.W.2d 899 , 902

- 903 (Tenn. 1992). The liability of an employer for medical expenses incurred by the employee on his own turns on whether, under the circumstances, the employee was justified in obtaining further medical services without first consulting the emplo yer. Pickett v. Chattanooga Convalescent and Nursing Home, Inc. , 627 S.W.2d 941 , 944 (Tenn. 1982).

Mr. Bucher discussed his symptoms several times with his supervisor, Mr. Perkins, who urged him to go to the hospital for medical treatment. Under the circumstances, the Court finds that Mr. Bucher was justified in seeking medical treatment

with Dr. VanWi nkle, and it is appropriate for Dr. VanWinkle to be designated the authorized treating physician for the medical causation evaluation and treatment, if

medical causation is established.

Diversco correctly notes that, as Mr. Bucher alleges to have suffered a hernia, he bears the additional burden of proving :

(1) There was an injury resulting in hernia or rupture; (2) The hernia or rupture appeared suddenly; (3) It was accompanied by pain; (4) The hernia or rupture immediately followed the accident; and (5) The hernia or ruptu re did not exist prior to the accident for which compensation is claimed.

Tenn. C ode Ann. § 50

- 6

- 212(a) (2014).

Diversco contends that Mr. Bucher has not met his burden of proving any of these

factors. It first argues that Mr. Bucher cannot meet the f irst requirement, as he has not proven that he actually has a hernia . In support of this argument

, Diversco cit es wha t it characterizes as conflicting diagnoses in the medical records. However, while some of

the medical providers discussed the possibility of other causes of Mr. Bucher’s

symptoms, the medical evidence establishes that, in fact, he has a hernia

. Dr. VanWinkle changed his mind about the diagnosis when he actually palpated the hernia on May 15,

2015. Further, the Apr il 19, 2015 Vanderbilt records diagnosed Mr. Bucher with a small right inguinal hernia, a diagnosis confirmed by ultrasound.

Diversco also argues that Mr. Bucher has not met the second and fourth statutory

factor s because he failed to sp ecifically describe what he was doing at the time the hernia appeared. This argument overlooks the fact that Mr. Bucher’s affidavit, admitted into6

evidence without objection, explicitly states he was lifting five

- gallon buckets when he felt pain in his gr oin.

Finally, Diversco contends Mr. Bucher failed to satisfy the fifth factor because he presented no medical evidence addressing whether the hernia pre

- existed the lifting

incident. Diversco cited no authority for the proposition that medical proof is e ssential to
establish the absence of a pre

- existing hernia. However, to the extent that medical opinion is necessary, it would follow the causation analysis set out above

– Mr. Bucher

has the right to a medical evaluation addressing causation, which inclu des consideration of whether the hernia pre

- existed the work injury.

Mr. Bucher’s P etition for B enefit D etermination includes a request for payment of his past medical expenses. As noted above, he has not established medical causation of his condition. Further, while justified in seeking medical treatment, he would only be

entitled to reimbursement for treatment recei ved after he gave notice of the injury. The

evidence is not clear as to exactly when he acknowledged to Mr. Perkins that he injured

himself at work. In addition, Mr. Bucher presented no medical proof as to the reasonableness and necessity of any medical expenses. Thus, t he Court finds , at this time, Mr. Bucher has not established the medical expenses for which he is entitled to be

reimbursed

.

The Court also denies Mr. Bucher’s claim for temporary disability benefits at this
time, as he has not establish ed medical causation.

IT IS, THEREFORE, ORDERED as follows:

1. Diversco shall schedule and pay for a medical evaluation by Dr. VanWinkle for the purpose of obtaining an opinion on t he medical causation of Mr. Bucher ’s inguinal hernia . In the event medical causation is established, Diversco shall provide continuing, reasonable and necessary care with Dr. VanWinkle as required by Tennessee Code Annotated section 50

- 6

- 204 (2014). Medical bills shall be

furnished to Diversco or its worke rs’ compensation carrier by Mr. Bucher or the medical providers.

2. Mr. Bucher’s request for payment of his p ast medical expenses is denied. At this time, Mr. Bucher has not come forward with sufficient evidence from which the Court may conclude he is likel y to prevail at a hearing on the merits on this issue.

3. Mr. Bucher’s request for temporary disability benefits is denied. At this time, Mr. Bucher has not come forward with sufficient evidence from which the Court may conclude he is likely to prevail at a hearing on the merits on this issue.7

4. This matter is set for a n Initial ( Scheduling ) Hearing on November 12 , 2015, at

11:00 a.m.

5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with this Order must occur no later than seve n business days from the date of entry of this Order as required by Tennessee Code

Annotated section 50

- 6

- 239(d)(3) (2014) . 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

- compli ance.

6. For questions regarding compliance, please contact the Workers’ Compensation Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)

253

- 1471 or (615) 532

- 1309.

ENTERED this the 6th day of September

, 2015

.

_____________________________________ Judge Dale Tipps

Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing :

A n Initial (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

. ”8

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, paym ent 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 I ndigency, 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 th e 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.

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 re porter and filing it

with the Court Cle rk 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 Heari ng 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 Cle rk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory appeal, the appe llant shall file such position statement with the Court Clerk within

three 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 three business days of the filing of the appellant’s position statement. All position st at ements 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

summar izing 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.9 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Expedited Hearing Order for

Medical Benefits was sent to the following recipients by the following methods of service

on this the 6th day of October

, 20 15

.

Name Certified

Mail First

Class

Mail Via

Fax Fax

Number Via

Email Email or Mail Address

David Bucher X 3338 Murfreesboro Hwy.

Lot 2 Manchester, TN 37355 David Deming

, Employer/Carrier’s

Counsel x DDEMING@manierherod.com

_____________________________________ Penny Shrum, Clerk of Court

Court of Workers’ Compensation Claims WC.CourtClerk@tn.gov10 APPENDIX

Exhibits :

1. Affadavit of David Bucher i

2. May 15, 2015 medical record from Dr. James VanWinkle

3. Discharge Summary and Consultation Note from Medical Center of Manchester

4. Form C

- 41 Wage Statement

5. Employee Instructions Form dated August 8, 2014

6. Medical Bills and Discharge Instructions (marked for identification only)

7. Form C

- 42 Medical Panel and co ver letter

8. Timecard Report for David Bucher

9. April 23, 2015 Return to Work note from Dr. Robert Durgin

10. June 23, 2015 Return to Work note from Dr. VanWinkle.

Technical record: ii

1. Pet ition for Benefit Determination

2. Dispute Certification Notice

3. Request for Ex pedited Hearing

4. Diversco’s Position Statement

i Mr. Bucher’s affidavit consists of a sworn, signed, and notarized Bureau form that contains no information regarding his alleged work injury, and an attached written and notarized statement that pr ovides his description of

the events

. ii The Court did not consider attachments to Technical Record filings unless admitted into evidence during the Expedited Hearing. The Court cons idered factual statements in these filings or any attachments to them as

a llegations unless established by the evidence.