Stewart, Jeffrey v. Day and Zimmerman

2020 TN WC 43

• Court: Tennessee Court of Workers' Compensation Claims
• Decided: April 8, 2020
• Docket: 2019-01-0569
• Status: Published

Opinion

FILED Apr 08, 2020 09:49 AM(ET) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

TENNESSE BUREAU OF "1-oRKERS' COMPENSATION IN THE COURT OF WORKE~S' COMPENSATION CLAIMS AT CHA'J1TANOOGA

Jeffery Stewart, ) Docket No. 2019-01-0569 Employee, ) v. ) Day and Zimmerman, I ) State File No. 90388-2018 Employer, ) And ) XL Specialty Insurance Co., I ) Judge Thomas Wyatt i Carrier. )

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EXPEDITED HEARING ORDE~ DENYING MEDICAL BENEFITS (DECISION ON THE RECORD) I i

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On April 8, 2020, this Court considfred Jeffrey Stewart's Request for Expedited Hearing seeking ongoing treatment and rei~bursement for past treatment of two capped teeth. Day and Zimmerman (DZ) claimed ~fr. Stewart waited more than five months to give notice of the dental injury and did not prove a causal relationship to his work injury. For the reasons below, the Court denies the requested benefits at this time.

History of Claim

On November 19, 2018, Mr. Stewaff fell and broke his leg at DZ. He underwent emergency surgery later that day. Mr. Stetart claimed that the caps on two of his back teeth broke during the fall, and he spit ther1 from his mouth at the scene. Mr. Stewart conceded that he did not hit his head in the fall, but he stated that the caps were knocked I

out by his upper teeth striking his lower teet~ when his body hit the ground.

Mr. Stewart testified that he told DZ'~ adjuster about the dental injury in a telephone call while he was hospitalized after surgery. Mr. Stewart did not recall the date he gave I notice because he took pain medication du~ing the weeks after his surgery. The adjuster testified that she received no notice of the ~ental injury until Mr. Stewart emailed her in April 2019, approximately five months afte~ the date of injury. Mr. Stewart stated he also told his ~urgeon about the dental injury at some time. The medical records contain no history tha~ Mr. Stewart reported injuring his teeth in the fall. ·

Findings of Fact an~ Conclusions of Law !

Mr. Stewart must show that he is li~ely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)( 1) (2019); NfcCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8~ 9 (Mar. 27, 2015).

DZ first defended Mr. Stewart's den~l claim on lack of timely notice. Tennessee Code Annotated section 50-6-201(a)(l) reguires that an injured employee give written notice of an injury within fifteen days unle~· it can be shown that the employer had actual knowledge. Mr. Stewart claimed he told D 's adjuster about the damage to his teeth while hospitalized after the injury. The adjuster c aimed she did not receive notice of the dental 1

claim for five months.

In Quaker Oats Co. v. Smith, 574 S.'~f.2d 45 (Tenn. 1978), the Supreme Court held that there is no requirement that an emplpyee give notice of each of several injuries received in a work accident. DZ clearly h~d actual notice of Mr. Stewart's fall and leg injury shortly after it occurred. That notice ii all that is necessary for Mr. Stewart to comply with the notice requirement for his Novembrr 2018 fall. I

DZ next defended on the ground tha~ Mr. Stewart did not sufficiently establish that his caps came off in his fall at work. It reli~d on the records of the medical providers who treated his broken leg, none of whom doc4mented a history of dental work injury. Mr. Stewart failed to produce a statement from ~ medical or dental provider causally relating his dental injury to his work accident. Th lack of evidence of causation is fatal to his dental claim at this time. The Court does no consider the prospect of dental injury in a fall to be an obvious injury exempt from the general rule that the employee must prove causation by medical testimony. See Tenn Code Ann. § 50-6-102(14). For this reason, the Court denies Mr. Stewart's dental claim at this time.

2 IT IS, THEREFORE, ORDERED ~s follows: !

1. Mr. Stewart's dental claim is denied ~t this time.

2. This cas~ is set for a Status Hearing tt 10:00 a.m. Eastern Time on June_~' 202~. The parties must call (615) 741-30611 or toll-free at (855) 747-1721 to part1c1pate m the Status Hearing. Failure to call ijri may result in a determination of the issues without the party's participation.

ENTERED April 8, 2020.

Judge T omas Wyatt Court of Workers' Compensation Claims 1

APP:f:NDIX

Exhibits: The Court considered the followitjlg exhibits in making its decision: 1. Rule 72 Declaration of Jeffre~ Stewart 2. Excerpts from the deposition ~f Jeffrey Stewart 3. Billing records of William Dafid Kirkpatrick, DDS 4. Operative note of Dr. Michaeli Veale 5. Rule 72 Declaration of Kriste, Campbell 6. Records of Hamilton County ]µMS 7. Emergency department recor~s of Memorial Hospital 8. Final Medical Report of Dr. ~ichael Veale, with attached medical records

Technical record: The Court considered th~ following filings in the record in making its decision: 1

1. Petition for Benefit Determin~tion 2. Dispute Certification Notice apd statements of additional issues 3. Employer's Position Statemerlt 4. Employee's Request for Expe~ited Hearing-Decision on the Record 5. Employer's Memorandum of~aw in Response to REH 6. Docketing Notice-Decision ~n the Record

J CERTIFICA1lE OF SERVICE I

I certify that a copy of the Order was sent as indicated on April 8, 2020. I !

Name Certified Em~il Service sent to: I Mail !

Chris Markel x! cmarkel@markelfirm.com Employee's Attorney idickev@markelfirm.com D. Brett Burrow XII bburrow@burrowlee.com Employer's Attorney i tbrasher@burrowlee.com

/s/ Penny Shrum w/permission JD P~nny Shrum, Court Clerk W~.courtclerk@tn.gov ! I