FILED 

October 25 ~ 2016 

TN <COURTOf 

1\ ORKE.RS' COMFiE.NS.t\TIO N 

CL'\IMS 

TENNESSE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT CHATTANOOGA 

EDWARD RICHARDS, 

Employee, 

v. 

KIEWIT POWER CONSTRUCTORS 

COMPANY, 

Employer, 

) Docket No.: 2016-01-0212 

) 

) State File No.: 11422-2015 

) 

) 

) 

) 

Tim-e 1:15PM 

And ) Judge: AUDREY A. HEADRICK 

) 

ZURICH AMERICAN INSURANCE 

COMPANY, 

Insurance Carrier. 

) 

) 

) 

) 

) 

EXPEDITED HEARING ORDER 

GRANTING MEDICAL BENEFITS 

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 (20 15). 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 

necessitated by the recurrent hernia he developed while working for another employer. If 

so, then the question turns to the extent of his entitlement to temporary 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, at this time, in proving entitlement to additional temporary disability benefits. 

1 A complete listing of the technical record and exhibits is attached to this Order as an appendix. 

1 
History of Claim 

On February 15, 2015, Mr. Richards, an electrician, suffered a hernia when lifting 

heavy wire. Kiewit accepted the 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 of Mr. Richards to a general surgeon, Mr. Richards selected 

Dr. Claudine Siegert from a panel. (Ex. 3.) 

Dr. Siegert diagnosed Mr. Richards with a ventral hernia and performed an open 

repair with mesh on May 14. (Ex. 5.) The parties agreed that Kiewit laid Mr. Richards 

off two days after his surgery and paid him temporary disability benefits from May 14, 

2015, through June 24, 2015. 

On June 10, 2015, Dr. Siegert noted Mr. Richards' surgical incision was "wellhealed without any evidence of infection or hernia." (Ex. 5.) However, she provided 

conflicting instructions regarding Mr. Richards returning to work. Her first instruction 

directed Mr. Richards to "stay out of work for a total of 6 weeks." ld. Dr. Siegert's 

second instruction directed him to "resume normal activity without restrictions." ld. She 

also encouraged Mr. Richards "to return to normal lifting slowly and gradually to reduce 

the risk of recurrent hernia." !d. Dr. Siegert did not schedule a follow-up appointment 

and stated Mr. Richards could "return as 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 a workers' compensation claim. 

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 of stairs 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 of his previous incision. 

When he went to palpate the area was in the umbilicus, he felt a 'squishing 

2 
sensation' 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 continue to have some intermittent pain at that 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 of recurrence. !d. Dr. 

Siegert also noted that, "it appears that the mesh from the previous placement has pulled 

away from the inferior aspect of the repair and [he] has had a 'recurrence' at the inferior 

aspect of his previous hernia." !d. Dr. Siegert diagnosed Mr. Richards with an incisional 

hernia, released him to return to work, and recommended surgical repair of the hernia. 

!d. She further stated that Mr. Richards would remain off work 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 "appears to be the cause of 

the [ventral] hernias." !d. When asked if the February 18, 2016 lifting incident was "the 

primary cause of the 'new' incisional hernia," Dr. Siegert opined as follows: 

Yes. . .. he has a 10% risk of recurrent 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 of her 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 six weeks after his May 14, 2015 surgery. !d. 

The parties did not present any testimony regarding Mr. Richards' work history 

following the February 18, 2016 incident. However, the parties agreed that Mass Electric 

hired Mr. Richards on September 7, 2016, and a business relationship of some nature 

exists between Mass Electric and Kiewit. Mr. Richards testified he remains employed by 

Mass Electric, though he has 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. 

3 
overcome the presumption of correctness of Dr. Siegert's opm10n that his recurrent 

hernia is a direct result of his 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 of temporary disability benefits, 

Kiewit argues it is entitled to a two-week overpayment it made to Mr. Richards after Dr. 

Siegert released him 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 Certification Notice on May 9, 2016. Mr. Richards filed a request for a hearing, 

and this Court heard the matter on September 30, 2016.3 

Findings of Fact and Conclusions of Law 

Mr. Richards bears the burden of proof on all essential elements of his 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 of his 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 sufficient evidence from which this Court might determine he is likely to prevail 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 of the 

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 of the original hernia," and she later clarified that "[t]he recurrent 

hernia is a direct result of having 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 ofhis February 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 Affidavit requesting a determination of benefits. 

4 
2016 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 of an aggravation of the original injury or a new and distinct injury, is 

compensable if it is the 'direct and natural result' of a 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 of the 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 of independent 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 of the 

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 proof indicates 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 a hearing on the merits regarding his entitlement to the requested medical 

treatment. 

However, the Court is unable to grant Mr. Richards request for temporary 

disability benefits. Mr. Richards argued he has not worked since September 6, 2016, due 

to his recurrent hernia. However, at the 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 document the extent of Mr. 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, 20 15). Therefore, at this time, the Court holds Mr. Richards is not likely to 

establish at a hearing on the merits that he is entitled to temporary disability benefits. 

5 
IT IS, 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 

of his 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 shall timely pay the charges. 

2. Mr. Richards' request for temporary disability benefits is denied at this time. 

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 assessment for 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. 

ENTERED this the 25th day of October, 2016. 

Judge Audr drick Court of Workers' 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. 

6 
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. 

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." 

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, payment 

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 Indigency, 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 the 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 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 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 reporter and filing it 

with the Court Clerk 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 Hearing 

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 Clerk of the Appeals Board. 

7 
6. If the appellant elects to file a position statement in support of the interlocutory 

appeal, the appellant shall file such position statement with the Court Clerk within 

five 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 five business days of the filing of the appellant's 

position statement. All position statements 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 

summarizing 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. 

8 
APPENDIX 

Exhibits: 

1. Affidavit of Edward Richards 

2. Wage Statement 

3. Medical records of American Family Care (Dr. Donna Van Schuyver) 

4. Causation response ofDr. Van Schuyver dated March 27, 2015 

5. Medical records ofBlue Mountain Surgery (Dr. Claudine Siegert) 

6. Causation response of Dr. Siegert to correspondence from Sedgwick CMS 

dated March 31, 20 15 

7. Causation response of Dr. Siegert to correspondence from Mr. Richards dated 

September 8, 20 16 

Technical record: 4 

1. Petition for Benefit Determination, filed March 29, 2016 

2. Responding Party's Position Statement in Opposition to 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. Order on Show Cause Hearing, filed August 22, 2016 

7. Affidavit ofMr. Richards requesting a hearing, filed August 23, 2016 

8. Notice of Expedited Hearing, filed August 25, 2016 

9. Motion filed by Mr. Richards requesting leave to participate in Expedited 

Hearing by telephone, filed September 15, 2016 

10. Order granting Mr. Richards' Motion for leave to participate by telephone in 

Expedited Hearing, filed September 27, 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. 

9 
CERTIFICATE 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 

of service on this the 25th day of October, 2016. 

Name Certified Via Fax 

Mail Fax Number 

Edward Richards, X 

Self-Represented 

Mary Dee Allen, 

Esq. 

Via 

Email 

X 

X 

10 

Email Address 

26 Mountain Brook Drive 

Candler, NC 28715 

moj oj oot(a),att.net 

mallen@wimberlylawson.com 

HRUM, COURT CLERK 

.courtclerk n.tn. ov