KAMDEN MCLEOD v. VALET GUYS OF KNOXVILLE, LLC
Docket Number: 2023-03-00663
TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT GRAY
May 13, 2024
Judge Brian K. Addington
State File Number: 860055-2023
EXPEDITED HEARING ORDER GRANTING BENEFITS
The Court held an expedited hearing on May 2, 2024, on Mr. McLeod‘s requests for medical and temporary disability benefits for his December 2022 work injury. Valet Guys disputed that Mr. McLeod‘s current condition is related to his injury. For the reasons below, the Court holds Mr. McLeod is entitled to the requested medical treatment, including surgery, and temporary total disability benefits.
Claim History
Mr. McLeod slipped on asphalt and injured his right arm and shoulder at work on December 28, 2022. Valet Guys accepted the claim, and Mr. McLeod received medical treatment from Dr. Joshua Moss, who repaired Mr. McLeod‘s torn rotator cuff and bicep tear.1
After surgery, Dr. Moss ordered physical therapy, but Mr. McLeod continued to experience pain. He returned to Dr. Moss and reported hearing a pop in his shoulder while showering. Dr. Moss‘s nurse noted an abnormality in his bicep and ordered an MRI. At first, the radiologist who read the MRI and Dr. Moss disagreed on the results. The radiologist initially diagnosed a recurrent rotator cuff tear, but after discussing the MRI with Dr. Moss, they concluded no retear occurred.2 Dr. Moss recommended additional
In North Carolina, Mr. McLeod attended three physical therapy sessions and sought treatment from Orthopedist Dr. Eric Lescault on his own.3 Dr. Lescault ordered a CT arthrogram scan and thought Mr. McLeod may have another rotator cuff tear. He suggested surgery to rule it out or repair the tear. He also restricted Mr. McLeod from work on July 31, 2023, until his next examination or surgery was performed. Mr. McLeod testified that he was unable to return to Dr. Lescault for financial reasons and Valet Guys declined to pay for the treatment.
Although Valet Guys provided work or continued his wages until May 31, it terminated Mr. McLeod in January, when he crashed a van at work. After the accident was reported, Mr. McLeod denied that he was responsible. Valet Guys obtained video of the incident, which showed that Mr. McLeod crashed the van. Mr. McLeod continued to deny the incident after Valet Guys showed him the video, so Valet Guys terminated him.
During the expedited hearing, Mr. McLeod testified that his injury has kept him from working. He had planned to start working for FedEx in North Carolina, but his injury prevented it. He stated he has been unable to work since he moved, that his arm is disfigured from the injury, and he has constant pain.
Jerry Kruse, co-owner of Valet Guys, testified that it stopped paying medical benefits because he was not going to approve treatment without getting copies of Mr. McLeod‘s medical records. He wanted the records to determine if Mr. McLeod had reinjured his arm by lifting heavy items during his move to North Carolina. He felt Mr. McLeod had a new injury.
In preparation for the hearing, the parties deposed both Drs. Moss and Lescault.
Dr. Moss did not diagnose a recurrent tear. He testified that the MRI findings were “typical postsurgical,” and that Mr. McLeod had an “intact repair.” When asked whether Mr. McLeod had suffered a new injury or if his pain was the result of his previous surgery, Dr. Moss responded, “it could be either.” He added, “It could be something as simple as reaching out to steady [himself] getting out of the shower, something like that.”
Dr. Lescault testified,
[W]e have a pretty good idea from the CT arthrogram that there‘s a recurrent tear, and that tear could be a non-healed portion of the cuff repair, if could be a propagation of the previous tear, which means the tear got bigger, or it could even be a new tear adjacent to the repair.
He stated that surgery was warranted when a patient continues to have pain 12 weeks after surgery, as in Mr. McLeod‘s case.
Findings of Fact and Conclusions of Law
Mr. McLeod must prove he is likely to prevail at a final hearing on his requested benefits.
Tennessee Workers’ Compensation law requires an employer to “furnish, free of charge to the employee, such medical and surgical treatment . . . made reasonably necessary by accident[.]”
Valet Guys did not offer Mr. McLeod a panel of physicians when he was in Knoxville or North Carolina. Therefore, the presumption on causation for panel physicians under
Valet Guys theorized that Mr. McLeod suffered a new injury by lifting heavy objects when he moved. Mr. McLeod testified that he did not, and Valet Guys offered no direct testimony or medical proof to contradict him.
Rather, at this point, both doctors have differing opinions of what caused Mr. McLeod‘s current condition. It could be something as simple as reaching out his arm. Dr. Moss relied solely on the MRI showing no new tear, and he and the radiologist originally disagreed about a recurrent tear. Dr. Lescault requested an additional test, which in his opinion shows another tear. Because Dr. Lescault based his opinion on more complete information, and because he stated that after 13 weeks, Mr. McLeod should not be having pain after surgery, the Court credits his testimony over Dr. Moss‘s.
For these reasons, the Court concludes Mr. McLeod is likely to prevail in proving that his current condition primarily arose out of his injury and surgery is needed.
The Court holds Mr. McLeod is not entitled to temporary partial disability benefits from June 1-12, 2023, because he was terminated for misconduct. Valet Guys had cause to terminate him because he refused to acknowledge that he crashed their van. Id.
However, he is entitled temporary total disability under Jones. Both Dr. Azzato and Dr. Lescault restricted Mr. McLeod from work beginning June 13. Dr. Lescault took him off work until he has surgery, which has not been performed. Further, Mr. McLeod was unable to return to Dr. Lescault to determine whether the work restrictions were still applicable, and he testified he has not worked.
The Court holds that Mr. McLeod is likely to prevail at the final hearing on an award of temporary disability benefits from June 13, 2023, through the date of this order, which is 47 weeks and six days. The parties agreed to a compensation rate of $368.19. The disability award amount is calculated as $17,304.93 (47 weeks times $368.19) plus $315.54 (six days times $52.59) for a total amount of $17,620.47. Temporary total benefits shall be ongoing in the amount of $368.19 weekly until Mr. McLeod is able to work or reaches maximum medical improvement.
IT IS ORDERED:
- Valet Guys shall provide additional medical treatment including surgery with Dr. Lescault as the authorized treating physician and pay for past medical treatment with Drs. Azzoto and Lescault and physical therapy.
- Valet Guys shall pay past temporary total disability benefits in a lump sum of $17,620.47 from June 13, 2023, through the date of this order. Mr. McLeod‘s attorney is entitled to a fee of 20% of this award as his attorney fee.
- Valet Guys shall pay weekly ongoing temporary total disability benefits from May 13, 2024, in the amount of $368.19 until Mr. McLeod is able to return to work or reaches maximum medical improvement. Mr. McLeod‘s attorney is entitled to a 20% attorney fee from these benefits.
- A status hearing is set for July 3, 2024, at 10:00 a.m. Eastern Time. You must call 855-543-5044 to participate in the hearing.
Unless interlocutory appeal of this Expedited Hearing Order is filed, compliance with this order must occur by seven business days of entry of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3) . The employer must submit confirmation of compliance by email to WCCompliance.Program@tn.gov by the compliance deadline. Failure to do so may result in a penalty assessment for noncompliance.- For compliance questions, please contact the Workers’ Compensation Compliance Unit by email at WCCompliance.Program@tn.gov.
ENTERED May 13, 2024.
/s/ Brian K. Addington
JUDGE BRIAN K. ADDINGTON
Court of Workers’ Compensation Claims
Appendix
Exhibits:
- Affidavit
- Wage Statement
- Notice of Filing Form C-32 Standard Form Medical Report
- Medical Records:
- University Orthopedic Surgeons
- Ortho Tennessee Physical Therapy
- PT Notes of Ryan Williams
- Dr. John Azzato
- Dr. Eric Lescault
- Deposition of Dr. Eric Lescault
- Deposition of Dr. Joshua Moss
I certify that a copy of this Order was sent on May 13, 2024.
| Name | Certified Mail | Fax | Service sent to: | |
|---|---|---|---|---|
| Glen Rutherford, Employee‘s Attorney | X | grutherford@knoxlawyers.com nenashort@knoxlawyers.com | ||
| William Carver, Employer‘s Attorney | X | wcarver@kramer-rayson.com jwatkins@kramer-rayson.com |
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov