2016 TN WC App. 24
Tenn. Work. Comp. App. Bd.2016Background
- Employee (Yarbrough) bent and struck his right shoulder on a cabinet on April 16, 2015 while working as a flooring installer; he reported immediate pain and alleges he informed his supervisor the next day and was given lighter duties.
- Employee sought self-treatment on May 1, 2015 and later (June 26, 2015) selected Dr. Riley Jones from Employer’s panel; Dr. Jones treated, injected, ordered MRI, took Employee off work, and ultimately recommended surgery.
- MRI showed degenerative AC-joint changes and impingement without a rotator cuff tear; Dr. Jones opined the workplace blow aggravated a preexisting condition and was >50.1% causative of the need for surgery.
- Employer obtained a records-only opinion from Dr. Claiborne Christian who attributed the need for surgery primarily to preexisting degenerative changes and not primarily to the work incident.
- Trial court (after expedited hearing) found notice timely, held the claim compensable, ordered medical benefits (including surgery) and temporary disability pay; Employer appealed.
Issues
| Issue | Yarbrough's Argument | Protective Services' Argument | Held |
|---|---|---|---|
| Timeliness of notice | Told supervisor the next day (April 17); performed lighter duties; contacted supervisor when unable to work | Supervisor (Moore) denied being told until late May/June | Board upheld trial court: credibility finding for Employee was not overcome; notice found timely |
| Causation for surgery / entitlement to medical benefits | Authorized treating surgeon (Dr. Jones) testified work trauma primarily caused/aggravated condition and made surgery necessary (>50.1%) | Employer’s records-review expert (Dr. Christian) said degenerative disease was primary cause; trauma only caused transient contusion/irritation | Board affirmed award of medical benefits: Employee presented sufficient evidence at expedited stage to show likely success at trial; Dr. Jones’s opinion entitled to statutory presumption and not rebutted by records-only expert |
| Finding that claim is fully compensable (preponderance at trial) | Employee urged trial court’s compensability finding | Employer disputed full compensability on merits | Board vacated trial court’s compensability finding as premature (employee had not yet proved entitlement by preponderance at a merits trial) |
| Frivolous appeal / sanctions / fees | Employee sought penalty, fees, and sanctions for Employer’s appeal and for failure to timely pay benefits | Employer urged its appeal had merit and was not for delay | Board declined to find appeal frivolous or award fees; appeal raised legitimate contested issues and led to vacatur of one trial-court finding |
Key Cases Cited
- Jones v. Sterling Last Corp., 962 S.W.2d 469 (Tenn. 1998) (statutory notice requirement exists to allow timely employer investigation and treatment)
- Bogus v. Manpower Temp. Serv., 823 S.W.2d 544 (Tenn. 1992) (giving statutory notice is a prerequisite to recovery under the Workers’ Compensation Act)
- Tryon v. Saturn Corp., 254 S.W.3d 321 (Tenn. 2008) (trial-court credibility findings based on in-court testimony warrant considerable deference)