Tidmore, John v. Tennessee Steel Center

2015 TN WC 153
CourtTennessee Court of Workers' Compensation Claims
DecidedNovember 5, 2015
Docket2015-03-0265
StatusPublished

This text of 2015 TN WC 153 (Tidmore, John v. Tennessee Steel Center) is published on Counsel Stack Legal Research, covering Tennessee Court of Workers' Compensation Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tidmore, John v. Tennessee Steel Center, 2015 TN WC 153 (Tenn. Super. Ct. 2015).

Opinion

IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT KNOXVILLE

JOHN TIDMORE ) Docket No.: 2015-03-0265 Employee, ) ) v. ) State File Number: 24517-2015 ) TENNESSEESTEELCENTER ) Employer, ) Judge Lisa A. Knott And ) ) MITSUI SUMITOMO INSURANCE ) COMPANY ) Insurance Carrier. )

EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS

This matter came before the undersigned workers' compensation judge on the Request for Expedited Hearing filed by the Employee, John Tidmore, pursuant to Tennessee Code Annotated section 50-6-239 (2014). The present focus of this case is Mr. Tidmore's right shoulder condition. The central legal issues are whether Mr. Tidmore gave proper notice of his claim and whether his injury arose primarily in the course and scope of his employment. For the reasons set forth below, the Court finds that Mr. Tidmore provided proper notice of his gradually occurring injury to his Employer, Tennessee Steel (TN Steel). The Court further finds that based on the evidence presented at this time, Mr. Tidmore is likely to succeed at a hearing on the merits of establishing that his right shoulder condition arose primarily in the course and scope of his 1 employment.

History of Claim

Mr. Tidmore is a 60-year-old resident of Knox County, Tennessee.

1 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order as an appendix. TN Steel employed Mr. Tidmore to operate a six-hundred-ton press. Mr. Tidmore alleged he received a right shoulder rotator cuff tear from repetitive movements of pulling or pushing a two-foot wrench to loosen and tighten large bolts.

Mr. Tidmore underwent his yearly physical with Dr. Christopher Cox on June 17, 2014. He complained about pain, for about a year, in both shoulders, right greater than left. At his September 17, 2014 visit, Mr. Tidmore informed Dr. Cox he was still experiencing shoulder pain and referenced that he is physically active at work. On March 17,2015, an MRI of Mr. Tidmore's right shoulder demonstrated a partial thickness tear of two tendons in the shoulder and a labral tear. Dr. Cox referred Mr. Tidmore for an orthopedic evaluation. (Ex. 3.)

The First Report of Injury reflects that Mr. Tidmore provided notice of his injury to TN Steel on March 17, 2015. (Ex. 15.) TN Steel provided Mr. Tidmore a panel of physicians, from which he selected Dr. Paul Brady. (Ex. 5.) Dr. Brady's May 18, 2015 note contains the following:

He reports the [right] shoulder has been giving him problems for years. It hurts on and off. He denies any specific incident or event on his shoulder. He has seen another physician who ordered an MRI. That MRI demonstrated a high-grade partial to small full-thickness rotator cuff tear. The patient then felt like this was likely attributable to some of his work activities, which require significant force to push and pull hard bolts when tightening and loosening those bolts.

I told him that without an event or an accident, I cannot within a reasonable degree of medical certainty attribute his rotator cuff tear back to a work- related event and therefore I did not think this is something, which qualifies under current Workmen's Compensation laws as being a work comp injury. I told him I am happy to take care of his shoulder outside of the work comp system if he so desires. Follow up with me as needed. No restrictions from my standpoint.

In addition, Dr. Brady handwrote on the May 18, 2015 WORKlink sheet, "Can not [sic] attribute problem to a work injury."

Mr. Tidmore returned to Dr. Brady on July 27, 2015, and brought a video of a co- worker changing bolts for him to watch. Dr. Brady noted:

I told him that after reviewing this video I do believe doing this repetitively over a long period of time is likely to have contributed/Colles[ sic] his rotator cuff tearing. I believe this within a reasonable degree of medical certainty [to be] the case. I told him to work with his mediator in regards to

------------------------------------------------------------------------ this causation and whether this should be filed as a Workmen's Compensation injury or under private insurance. (Emphasis added.)

Dr. Brady also made the following addendum to his note: "I believe that Mr. Tidmore's right shoulder rotator cuff tear shows a preponderance of the evidence that his employment contributed more than 50% in causing the injury considering all causes." (Emphasis added). (Ex. 2.)

Mr. Tidmore filed a Petition for Benefit Determination seeking medical benefits. The parties did not resolve the disputed issues through mediation, and the Mediating Specialist filed a Dispute Certification Notice. Mr. Tidmore filed a Request for Expedited Hearing, and this Court heard the matter on October 6, 2015.

At the Expedited Hearing, Mr. Tidmore asserted he provided proper notice of his injury because he reported it after realizing his shoulder pain was due to a tear rather than general work aches and pains. He further asserted that Dr. Brady's July 27, 2015 opinion established his injury arose primarily out of and in the course and scope of his employment. TN Steel countered that Mr. Tidmore did not give proper notice of his injury because he knew when he saw Dr. Cox in June 2014, that he thought his shoulder pain was work-related, yet he did not provide notice of his injury to TN Steel until March 17, 2015. TN Steel further countered that Dr. Brady's conflicting causation opinions cancel each other out and should not be given weight because Mr. Tidmore did not provide an accurate history of the time he spent removing the bolts and did not tell Dr. Brady about his gardening activities.

Findings of Fact and Conclusions of Law

The Workers' Compensation Law shall not be remedially or liberally construed in favor of either party but shall be construed fairly, impartially and in accordance with basic principles of statutory construction favoring neither the employee nor employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers' compensation claim has the burden of proof on all essential elements of a claim. Tindall v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); 2 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). An employee need not prove every element of his or her 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

2 The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre- July I, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory amendments." McCord v. Advantage Human Resourcing, No . 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 20 15). At an expedited hearing, an employee has the burden to come forward with sufficient evidence from which the trial court can determine that the employee is likely to prevail at a hearing on the merits. !d.

Notice

Tennessee Code Annotated section 56-6-201(b) (2014) provides the following:

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Related

Tindall v. Waring Park Ass'n
725 S.W.2d 935 (Tennessee Supreme Court, 1987)

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Bluebook (online)
2015 TN WC 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tidmore-john-v-tennessee-steel-center-tennworkcompcl-2015.