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### TENNESSEBUREAU OFWORKERS' COMPENSATION INTHE COURTOFWORKERS' COMPENSATIONCLAIMS ATCHATTANOOGA EDWARDRICHARDS, Employee, 

### v. KIEWITPOWERCONSTRUCTORS COMPANY,Employer, ) DocketNo.: 2016-01-0212 ) 

### ) StateFile No.: 11422-2015 ) ) ) ) Tim

- e 1: 15PM



### And ) Judge: AUDREYA. HEADRICK ) 

### ZURICHAMERICANINSURANCE COMPANY,InsuranceCarrier. ) ) ) ) ) 

### EXPEDITEDHEARINGORDER GRANTINGMEDICALBENEFITS

This matter came before the Court on September 30, 2016, on a Request for Expedited Hearing filed by Edward Richards pursuant to Tennessee Code Annotated section 50-6-239 (2015). The central legal issue is whether Mr. Richards is likely to prevail at a hearing on the merits in proving that Kiewit is liable for medical treatment necessitatedbythe recurrentherniahe developedwhileworking for another employer. If so, thenthe question turns to the extent ofhis entitlementtotemporary disability benefits. For the reasons set forth below, the Court holds Mr. Richards is likely to prevail at a hearing on the merits in proving his entitlement to additional medical benefits. 1 However, the Court also holds Mr. Richards is not likely to prevail at a hearing on the merits, atthistime, in provingentitlementto additionaltemporary disability benefits.

1 A complete listing ofthe technical record and exhibits is attached to this Orderas an appendix.

1History ofClaim On February 15, 2015, Mr. Richards, an electrician, suffered a herniawhen lifting heavy wire. Kiewit acceptedthe claim as compensable. Mr. Richards initially saw Dr. Donna Van Schuyver, who, after an abdominal ultrasound, diagnosed two mid-line, sub-umbilical, abdominal wall hernias. (Ex. 3.) Noting Mr. Richards' obesity, Dr. Van Schuyver opined, "I can't say that the hernias are due to lifting [a] heavy object at work, however, I can't say that it isn't." (Ex. 4.) After Dr. Van Schuyver's referral ofMr. Richards to a general surgeon, Mr. Richards selected Dr. Claudine Siegert from apanel. (Ex. 3.) Dr. Siegert diagnosed Mr. Richards with a ventral hernia and performed an open repairwith mesh on May 14. (Ex. 5.) The parties agreed that Kiewit laid Mr. Richards offtwo days after his surgery and paid him temporary disability benefits from May 14, 2015, throughJune 24, 2015. On June 10, 2015, Dr. Siegert noted Mr. Richards' surgical incision was "wellhealed without any evidence ofinfection or hernia." (Ex. 5.) However, she provided conflicting instructions regarding Mr. Richards returning to work. Her first instruction directed Mr. Richards to "stay out ofwork for a total of6 weeks." ld. Dr. Siegert's second instruction directed him to "resumenormal activity withoutrestrictions." ld. She also encouraged Mr. Richards "to return to normal lifting slowly and gradually to reduce the risk ofrecurrent hernia." !d. Dr. Siegert did not schedule a follow-up appointment and statedMr. Richards could "returnas needed." ld. Beginning in July 2015, Mr. Richards began working numerous, short-term assignments as an electrician. He testified his work as an electrician routinely requires him to lift up to fifty pounds. In January 2016, Mr. Richards started working as an electrician for Emory Electric through a temporary staffing agency. In early February, Mr. Richards testified that he carried a twenty-pound toolbox up two to three flights of stairs and experienced burning and redness. He reported the incident to Emory but did not file aworkers' compensationclaim. On February 18, 2016, Mr. Richards returned to see Dr. Siegert and provided the following history: He states that he was doing well until about 2 weeks ago when he had to carry his 20 up [sic] 4 flights ofstairs since the elevator in the hotel was broken. He had noticed later that night that the area round the previous surgical repair was red, tender and swollen.

. .. [A]bout a week later, he had increased burning sensation right at the dome ofhis previous incision. When he wentto palpate the area was in the umbilicus, he felt a 'squishing
2sensation' and was able to reduce/push in some contents back into his abdominal cavity. He has been able to do this multiple times since that episode, and does continuetohave some intermittentpain atthat site. !d. Her office note states, "[h]is body habitus and heavy lifting at work," as well as his surgical repair failing in less than a year, put him at a higher risk ofrecurrence. !d. Dr. Siegert also noted that, "it appears that the mesh from the previous placement has pulled away from the inferior aspect ofthe repair and [he] has had a 'recurrence' at the inferior aspect ofhis previous hernia." !d. Dr. Siegert diagnosed Mr. Richards with an incisional hernia, released him to return to work, and recommended surgical repair ofthe hernia. !d. She further stated that Mr. Richards would remain offwork for six to eight weeks following the surgery. Kiewit sent correspondence to Dr. Siegert asking her to respond to various questions regarding Mr. Richards' prior hernias as well as his new hernia.2 (Ex. 6.) Dr. Siegert opined the lifting incident at Kiewit in February 2015 "appearsto be the cause of the [ventral] hernias." !d. When asked ifthe February 18, 2016 lifting incidentwas "the primary cause ofthe 'new' incisionalhernia," Dr. Siegert opined as follows: Yes.

. .. he has a 10% risk ofrecurrent hernia after repair. Any lifting, straining, pushing or pulling can be associated with a recurrence. The timing of the 'incident' and the observation of a 'new bulge' seem to correlate [with] each other. The 'new' problem is actually a recurring of the original hernia[.] !d. Mr. Richards later sent a letter to Dr. Siegert requesting clarification ofher prior responses to Kiewit. Dr. Siegert opined that, "[t]he recurrent hernia is a direct result of having a previous hernia." (Ex. 7.) She also clarified that Mr. Richard was to be off work for sixweeks afterhis May 14, 2015 surgery. !d. The parties did not present any testimony regarding Mr. Richards' work history following the February 18, 2016 incident. However, theparties agreedthatMassElectric hired Mr. Richards on September 7, 2016, and a business relationship of some nature exists betweenMass Electric and Kiewit. Mr. Richards testified he remains employedby MassElectric, though hehas not actually worked due to his hernia. Mr. Richards seeks medical benefits for the recurrent hernia and temporary disability benefits from September 8, 2016, forward. Mr. Richards argued Kiewit did not

2 The Court initially admitted this correspondence for identification purposes only since Dr. Siegert did not sign it. However, the Court permitted defense counsel to verify with Dr. Siegert that the Medical Certification provided with her medical records also included the letter. The Court admits into evidence Dr. Siegert's written confirmation and the letter as Exhibit 6.
3overcome the presumption of correctness of Dr. Siegert's opm10n that his recurrent hernia is adirectresult ofhis original hernia. Kiewit argued that the cause of Mr. Richards' recurrent hernia is due to a subsequent, intervening injury that occurred while working for a new employer. Specifically, it argues Dr. Siegert's records show that Mr. Richards carrying a twentypound toolbox up several flights of stairs caused his recurrent hernia. Kiewit further argued Mr. Richards did not establish medical causation because Dr

. Siegert did not use the "arising primarily" standard. Regarding the issue oftemporary disability benefits, Kiewit argues it is entitled to a two-week overpayment it made to Mr. Richards after Dr. Siegertreleasedhim on June 10, 2015. Mr. Richards filed a Petition for Benefit Determination on March 29, 2016. The parties did not resolve the disputed issues through mediation, and the mediator filed a Dispute CertificationNotice on May 9, 2016. Mr. Richards filed a request for a hearing, and this Courtheard thematter on September 30, 2016.3 Findings ofFact and Conclusions ofLaw Mr. Richards bears the burden ofproofon all essential elements ofhis workers' compensation claim. 

### Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015). However, he is not required to prove every element ofhis 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). Instead, he must come forward with sufficientevidence from whichthis Courtmight determine he is likely toprevail at a hearing on the merits. 

### !d. As the panel physician, Dr. Siegert's opmton regarding causation "shall be presumed correct but this presumption shall be rebuttable by a preponderance ofthe evidence." Tenn. Code Ann.§ 50-6-102(14)(E) (2015). After receiving correspondence from the parties regarding causation, Dr. Siegert opined that "[t]he 'new' problem is actually a recurring ofthe original hernia," and she later clarified that "[t]he recurrent hernia is a direct result ofhaving a previous hernia." (Ex. 6 and 7.) Stated another way, Dr. Siegert is opining that Mr. Richards' recurrent hernia is the direct and natural consequence ofhisFebruary 15, 2015 hernia. Our Tennessee Workers' Compensation Appeals Board recently addressed the direct and natural consequence rule in 

### Lee v. 

### Western Plastics, et al., No. 2016-06-0912,

3 Following a show cause hearing, Mr. Richards filed an Affidavitrequesting a determination ofbenefits.

42016 TN Wrk. Comp. App. Bd. LEXIS _(Tenn. Workers' Comp. App. Bd. Oct. 20, 2016):In Tennessee, the general rule is that a "subsequent injury, whether in the form ofan aggravation ofthe original injury or anew and distinct injury, is compensable ifit is the 'directand natural result' ofa compensable injury." Anderson v. Westfield Grp., 259 S.W.3d 680, 696 (Tenn. 2008). (Footnote omitted). "The rule, commonly referred to the as the direct and natural consequences rule, has been stated as: [ w]hen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment." !d. Therefore, "all the medical consequences and sequelae that flow from the primary injury are compensable." Rogers v. Shaw, 813 S.W.2d 397, 400 (Tenn. 1991). "The rationale for the rule is that the original compensable injury is deemed the cause ofthe damage flowing from the subsequent injury-producing event." Anderson, 259 S.W.3d at 697. Id. at slip op. 4. The limitation on the direct and natural consequence rule is "whether the subsequent injury is the result ofindependent intervening causes, such as the employee's own conduct." Anderson, 259 S.W.3d at 697. Also, "in order for an employee's actions to constitute an independent intervening incident sufficient to break the chain of causation, there must be negligent, reckless, or intentional conduct on the part ofthe employee." Lee, at slip op. 5. Here, there is no evidence to suggest that Mr. Richards acted negligently, recklessly, or intentionally in causing the recurrent hernia. Instead, the medical proofindicates that Mr. Richards' recurrent hernia is a natural consequence of his original work-related hernia. Therefore, the Court holds that Mr. Richards would likely prevail at ahearing on the merits regardinghis entitlementto the requested medical treatment. However, the Court is unable to grant Mr. Richards request for temporary disability benefits. Mr. Richards argued he has notworked since September 6, 2016, due to his recurrenthernia. However, atthe last office visit on February 18, 2016, Dr. Siegert documented that she released Mr. Richards to return to work without restrictions. While it is certainly possible that Mr. Richards' work status may have changed after February 18, 2016, no medical records in evidence documentthe extent ofMr. Richards' disability or its duration. See generally Jones v. Crencor Leasing and Sales, No. 2015-06-0332, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7-8 (Tenn. Workers' Comp. App. Bd. Dec. 11, 2015). Therefore, at this time, the Court holds Mr. Richards is not likely to establish at ahearing on the merits thathe is entitledto temporary disability benefits.

5ITIS,THEREFORE, ORDERED as follows: 1. Mr. Richards' request for medical benefits is granted. Kiewit or its workers' compensation carrier shall authorize him to see Dr. Claudine Siegert for treatment ofhis recurrent hernia. Mr. Richards or the providers shall furnish Kiewit, or its carrier, bills for the charges incurred for compensable care, and Kiewit or its carrier shalltimelypaythe charges. 2. Mr. Richards' request for temporary disability benefits is denied at thistime. 3. This matter is set for a Status Hearing on January 10, 2017, at 2:00p.m., Eastern Time. 4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with this Order must occur no later than seven business days from the date of entry of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3) (2015). The Insurer or Self-Insured Employer must submit confirmation of compliance with this Order to the Bureau by email to WCCompliance.Prog..am(a).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 assessmentfor non-compliance. 5. For questions regarding compliance, please contact the Workers' Compensation Compliance Unit via email WCCompliance.Prograrn@tn.gov or by calling (615) 253-1471 or(615) 532-1309. ENTEREDthisthe25thdayofOctober,2016.

Judge

### Audr**drick** CourtofWorkers' Compensation Claims

Status Hearing: A Status Hearing has been set on January 10, 2017, at 2:00 p.m. Eastern Time, with Judge Audrey A. Headrick, Court of Workers' Compensation Claims. You must call 423-634-0164 or toll free at 855-383-0001 to participate in the Initial Hearing.

6Please Note: You must call in on the scheduled date/time to participate. Failure to call in may result in a determination ofthe issues without yourfurtherparticipation.
Right to Appeal: Tennessee Law allows any party who disagrees withthis Expedited Hearing Order to appeal the decision to the Workers' Compensation Appeals Board. To file aNotice of Appeal, you must: 1. Complete the enclosed form entitled: "ExpeditedHearingNotice ofAppeal." 2. File the completed form with the Court Clerk 

### within seven business days ofthe date the Workers' CompensationJudge enteredthe ExpeditedHearing Order. 3. Serve acopy oftheExpeditedHearingNotice ofAppeal upon the opposingparty. 4. The appealing party is responsible for payment ofa filing fee in the amount of $75.00. Within ten calendar days after the filing ofa notice ofappeal, payment mustbe receivedby check, money order, or credit cardpayment. Payments canbe made in person at any Bureau office or by United States mail, hand-delivery, or other delivery service. In the alternative, the appealingparty may file an Affidavit ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice ofAppeal ormust be filed withinten calendar days thereafter. TheAppeals Board will consider the Affidavit ofIndigency 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 oav the fiJing 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 ofensuring a complete record on appeal, may request, from the Court Clerk, the audio recording of the hearing for the purpose ofhaving 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 ofAppeal. Alternatively, the parties may file ajoint statement of the evidence within ten calendar days of the filing of the Expedited Hearing Notice ofAppeal. The statement ofthe 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 submittedto the Clerk oftheAppeals Board.

76. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file suchposition statementwith the Court Clerkwithin five business days ofthe expiration ofthe 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 ofthe filing ofthe appellant's position statement. All position statements pertaining to an appeal of an interlocutory order should include: (1) a statement summarizing the facts ofthe case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition ofthe case as a result ofthe expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, or otherauthority.

8APPENDIX Exhibits: 1. Affidavit ofEdwardRichards 2. Wage Statement 3. Medical records ofAmericanFamily Care (Dr. DonnaVan Schuyver) 4. Causationresponse ofDr.Van Schuyverdated March 27, 2015 5. Medical records ofBlueMountain Surgery (Dr. Claudine Siegert) 6. Causation response of Dr. Siegert to correspondence from Sedgwick CMS dated March 31, 2015 7. Causation response ofDr. Siegert to correspondence from Mr. Richards dated September 8, 2016

Technicalrecord: 4 1. Petition for BenefitDetermination, filed March 29, 2016 2. Responding Party'sPosition Statement in Oppositionto the Requesting Party's Request for Benefits, filed April 18, 2016 3. Dispute Certification Notice with additional disputed issues and defenses attached, filed May 9, 2016 4. Show Cause Order, filed August 1, 2016 5. Amended Show Cause Order, filed August 1, 2016 6. Orderon Show Cause Hearing, filed August22, 2016 7. Affidavit ofMr. Richards requesting ahearing, filed August23, 2016 8. Notice ofExpedited Hearing, filed August25, 2016 9. Motion filed by Mr. Richards requesting leave to participate in Expedited Hearingby telephone, filed September 15, 2016 10

. Order granting Mr. Richards' Motion for leave to participate by telephone in Expedited Hearing, filed September27, 2016

4 The Court did not consider attachments to Technical Record filings unless admitted into evidence during the Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as allegations unless established by the evidence.

9CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Expedited Hearing Order Granting Medical Benefits was sent to the following recipients by the following methods ofservice onthis the 25th day ofOctober, 2016.

Name Certified Via Fax Mail Fax Number EdwardRichards, X Self-Represented MaryDeeAllen, Esq. Via Email

X

X

10 EmailAddress 26 MountainBrookDrive Candler, NC 28715 mojojoot(a),att.net mallen@wimberlylawson.com

HRUM, COURT CLERK

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