FILED
Jan 31, 2020
11:01 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Jeffrey Jones, ) Docket No.: 2019-01-0024
Employee, )
Vv. )
Columbus McKinnon Corp., ) State File No.: 3286-2019
Employer, )
And )
Safety National Casualty Corp., ) Judge Thomas Wyatt
Carrier. )
)
EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS
This Expedited Hearing concerned two issues: (1) whether Jeffrey Jones gave
Columbus McKinnon Corp. (CMC) satisfactory notice of an alleged May 10, 2018 work
injury; and (2) if the claim is not barred by lack of notice, whether Mr. Jones’s current
symptoms arise from a 2014 amputation or a new work-related injury. For the reasons
below, the Court holds that Mr. Jones did not establish entitlement to the requested
benefits.
History
In 2014, Mr. Jones suffered partial amputation injuries to his right index and long
fingers while working at CMC. He underwent surgery and eventually returned to work.
Later he settled his claim with open medical benefits under hand surgeon Dr. Mark
Brzezienski’s care.
On May 10, 2018, Mr. Jones experienced right upper-extremity pain while
handling parts at CMC. He testified that, although he had experienced residual pain in
his amputated fingers and his palm since his return to work, the pain he felt on May 10
was something “he never felt before.” Mr. Jones described the pain as radiating from his
hand down his arm into his elbow.'
Mr. Jones testified that he reported his pain to CMC supervisor Kevin Schlageter.
He initially stated that he told Mr. Schlageter “what happened,” but conceded on cross-
examination that he did not explain how he got hurt. Mr. Schlageter took Mr. Jones to
Stephen Byer, who handles CMC’s workers’ compensation claims. Mr. Byer then
obtained an appointment for Mr. Jones to see Dr. Brzezienski under his 2014 claim. Mr.
Byer testified that neither Mr. Jones nor Mr. Schlageter told him that Mr. Jones was
claiming a new work injury.
On May 18, Mr. Jones saw a provider at UT Family Practice for his pain. He saw
Dr. Brzezienski approximately three weeks later. Neither provider noted that Mr. Jones
reported suffering an injury on May 10. Dr. Brzezienski diagnosed carpal tunnel and
Guyon’s canal syndromes and recommended surgery. CMC approved the surgeries as
treatments associated with Mr. Jones’s amputation injury. Mr. Jones declined to undergo
the procedures “on the advice of counsel.”
Mr. Jones filed a Petition for Benefit Determination seeking a panel from which to
select a physician to treat his May 2018 injury.” He did not submit medical evidence in
support of this claim. CMC argued that Mr. Jones’s claim is barred for lack of notice, but
also submitted Dr. Brzezienski’s deposition testimony in defense of its position that Mr.
Jones’s complaints stem from his 2014 injury.
On the issue of causation, Dr. Brzezienski testified that Mr. Jones experienced
normal post-operative pain in his right hand and amputated fingers. His January 2015
note indicated that Mr. Jones reported significant “dysethesias” (altered sensation) in his
right hand. He placed Mr. Jones at maximum medical improvement in March 2015.
Mr. Jones did not see Dr. Brzezienski again until February 2017, when Mr. Jones
reported that, for the past several months, he had experienced intermittent pain in the
right forearm and pain and tingling in his right hand. Dr. Brzezienski’s notes did not
include a reported new injury, and he testified that he related the described symptoms to
the amputation injury.
Mr. Jones next saw Dr. Brzezienski on June 12, 2018, approximately four weeks
after the asserted May 10 injury. He reported “funny feelings in his hand [and]
significant dysesthesias[.]” Dr. Brzezienski described Mr. Jones’s symptoms as “carpal
* The affidavit Mr. Jones signed in support of his Request for Expedited Hearing did not mention elbow
ain.
Mr. Jones also sought temporary disability benefits in his PBD. That issue is not before the Court
because the Dispute Certification Notice did not certify it for adjudication.
2
tunnel syndrome symptoms.” He did not note that Mr. Jones related his symptoms to a
new work injury.
Dr. Brzezienski testified that the symptoms Mr. Jones reported on June 12 differed
from those reported in 2017 because the tingling was more severe and Mr. Jones did not
previously report forearm and hand pain. However, Dr. Brzezienski causally related
these “carpal tunnel syndrome symptoms” to Mr. Jones’s amputation, stating:
When you have an amputation of the bones of your fingers, the tendons
actually draw back into your palm. So the pathophysiology of carpal
tunnel syndrome is compression of the median nerve in the
compartment, in the carpal tunnel. If your tendon draws back and
bunches up in the carpal tunnel, they create a volume situation which is
frequently seen in amputation patients.
On cross-examination, Dr. Brzezienski testified that Mr. Jones’s repetitive work
with his right hand “could exacerbate his underlying problem.” However, he further
explained that “it was no surprise to me that he came back with median nerve
compression” because he had reported similar symptoms post-surgery. When asked to
assume that Mr. Jones’s May 10 symptoms were precipitated by repetitive work activity,
Dr. Brzezienski responded that he could not separate amputation-related symptoms from
those caused by repetitive work. However, he did not change his causation opinion.’
Findings of Fact and Conclusions of Law
General Legal Principles
Mr. Jones must come forward with sufficient evidence from which the Court can
determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). When causation is at issue, he must show that
his alleged injuries arose primarily out of and in the course and scope of employment.
This includes showing “to a reasonable degree of medical certainty that [the work
incident] contributed more than fifty percent (50%) in causing . . . disablement or need
for medical treatment, considering all causes.” “Shown to a reasonable degree of medical
certainty” means that a physician must give a causation opinion using a “more likely than
not” standard, as opposed to speculation or possibility. Injuries that aggravate pre-
existing conditions are compensable if the aggravation arose primarily out of and in the
course and scope of employment. See Tenn. Code Ann. § 50-6-102(14).
* Dr. Brzezienski also testified that Mr. Jones might have developed deQuervain’s tendonitis in his post-
amputation hand but stated that this condition had resolved. He additionally concluded that Mr. Jones did
not have cubital tunnel syndrome, even though the nerve conduction study showed positive findings.
3
Notice
The Workers’ Compensation Law mandates that “[e]very injured employee . . .
shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable
and practicable, give or cause to be given to the employer who has no actual notice,
written notice of the injury.” Tenn. Code Ann. § 50-6-201. Mr. Jones claimed that he
gave CMC management notice of his new injury right-upper-extremity injury on the date
it occurred. CMC countered that Mr. Jones only reported that he was experiencing pain;
he did not report a new injury. Thus, CMC said it justifiably scheduled an appointment
with the physician authorized to treat his amputations. For these reasons, CMC asserted
that Mr. Jones’s claim that he sustained a new injury to his right upper extremity on May
10, 2018, must fail for lack of notice.
In considering this issue, the Court recognizes that Mr. Jones testified on direct
examination that he told CMC management how he allegedly hurt his right upper
extremity in May 2018. However, he retreated from that testimony on cross-
examination. For that reason, the Court gives more weight to Mr. Byer’s testimony. He
testified that neither Mr. Jones nor Mr. Schlageter told him that Mr. Jones claimed a new
work injury. Thus, Mr. Byer scheduled an appointment with Dr. Brzezienski. The Court
also notes that neither UT Family Practice nor Dr. Brzezienski recorded that Mr. Jones
gave a history of injuring his right arm at work on May 10. In view of the above, the
Court holds that Mr. Jones will not likely prevail at trial in establishing that he gave CMC
notice of sustaining a new right-upper extremity injury on May 10, 2018.
However, the above holding does not end the notice issue. The notice statute also
requires the employer to show prejudice before a lack of notice can form the foundation
of a denial of benefits. See Tenn. Code Ann. § 50-6-201(a)(3); Buckner v. Eaton Corp.,
2016 TN Wrk. Comp. App. Bd. LEXIS 84, at *11-12 (Nov. 9, 2016). Here, CMC failed
to establish it will likely prevail at trial in showing prejudice. In support, the Court notes
that Mr. Jones informed CMC management that he claimed he could not work due to
pain. This notice caused CMC to send Mr. Jones to Dr. Brzezienski, who provided a
causation opinion favorable to its position.
Causation
The only causation opinion before the Court is Dr. Brzezienski’s. While Mr.
Jones’s cross-examination might have caused him to equivocate slightly, it is still clear
that the doctor concluded that Mr. Jones’s current symptoms relate to his amputation
injury. Even had Mr. Jones negated Dr. Brzezienski’s opinion, which he did not, the
Court could not rule in Mr. Jones’s favor because he did not come forward with a
medical opinion that he sustained a new work-related injury.
The Court holds that Mr. Jones has not met his burden of establishing that he will
likely prevail at trial on causation. Thus, the Court denies Mr. Jones’s request for
medical benefits at this time. While he might be entitled to medical benefits under the
settlement of the 2014 amputation injury, the Court cannot award him those benefits in
this claim.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Jones is not entitled to the requested benefits.
2. This case is set for a Status Hearing at 10:30 a.m. Eastern Time on May 1, 2020.
The parties must call (615) 741-3061 or toll-free at (855) 747-1721 to participate.
Failure to call in might result in a determination of the issues without your further
participation.
ENTERED January 31, 2020.
fhonk Mes
Judge Thomas Wyatt
Court of Workers’ ae Claims
APPENDIX
Exhibits: The Court admitted the following exhibits into evidence during the Expedited
Hearing:
Affidavit of Jeffrey Jones
Records of UT Family Practice
Records of Dr. Mark Brzezienski
Transcript of Dr. Brzezienski’s deposition
Letter to Dr. Brzezienski with his handwritten responses
Records of Erlanger Medical Center (operative report)
First Report of Injury
2017 Settlement Order*
Summary Judgment orders
10. Declaration of Brittney Simmons
11. Excerpts from the transcript of the deposition of Jeffrey Jones.
San aw Yh =
“Mr. Jones objected to exhibits 3 through 8 on the grounds that his treatment from Dr. Brzezienski was
irrelevant to his new injury. The Court overruled the objections.
5
Technical record: The Court considered the following filings:
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing filed July 3, 2019
Request for Expedited Hearing filed October 16, 2019
Order Scheduling Expedited Hearing
Notice of Expedited Hearing
Employer Witness List
Employer Position Statement
. Employer Pre-Hearing Statement
10. Employer Notice of Filing
11.Employee Position Statement.
Pen PS Ve PPS
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on January 31, 2020.
Name Certified | Email | Service sent to:
Mail
Kent T. Jones Xx Joneslaw08@gmail.com
Employee’s Attorney
Robert J. Uhorchuk xX rju@spicerfirm.com
Employer’s Attorney kburke@spicerfirm.com
Donna baum nial Nwwo un
Penny Shrum)!Court Clerk
We.courtclerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www. tr.pow/workforce/iniuries-at-work/.
we.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Vv.
Employer
Notice is given that
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
0 Expedited Hearing Order filed on XO Motion Order filed on
D Compensation Order filed on 0 Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party}: O Employer[_lEmployee
Address: Phone:
Email: a
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appeliant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: Docket No.: Date of Inj.:
Appellee(s) (Opposing Party): LE Employer [Employee
Appellee’s Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of ,20
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2687
AFFIDAVIT OF INDIGENCY
1 , having been duly swom according to law, meke oath that
because of my poverty, | am unable to bear the costs of this appeal ard request that the filing fea to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
. Relationship;
Relationship:
Relationship:
Relationship:
6. |!am employed by.
My employer's address Is:
My employer's phone number Is:
7. My present monthly household income, after federal income and social security taxes are deducted, js:
$
B. | receive of expect to racelve manay from the following sources:
AFDC $ per month beginning
SSI $__ sper manth beginning.
Retirement § per month ‘baginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 1] 1082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental § per month
Groceries $ per month Telephone $ per month
Electricity $ per month Schoo! Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Chitd Care $ _.. per month
Transportation $ per month Child Support $. per month
Car $ per month
Other $ par month (describe: )
10. Assets:
Automabile $ (FMV)
Ghecking/Savings Acct. §
House 8 (FMV)
Other $ Destrbe:
11. My debts are:
Amount Owed To Whom
( hereby declare under the penalty of perjury that the foregoing anewers are true, correct, and complete
and that | am financially unable to pay the costs of thia appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082