Eubank, Chaddwick v. GEM Technologies, Inc.

FILED
May 28, 2024
03:17 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Chaddwick Eubank ) Docket No. 2023-03-3754
)
v. ) State File No. 35481-2023
)
GEM Technologies, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Lisa A. Lowe, Judge )

Affirmed in Part and Remanded

In this interlocutory appeal, the employer appeals the trial court’s decision denying the
employer’s motion to compel and concluding the employee will likely prevail at a
hearing on the merits with respect to his claim for certain medical benefits. The
employee alleged injuries to his back, left arm, and left knee due to a fall at work. After
multiple emergency room visits and treatment with an unauthorized physician, the
employer authorized the employee to treat with an occupational health facility. That
provider referred the employee to an orthopedic physician, and the employer provided a
panel; however, the employer declined to authorize an appointment once it received
medical records from other providers. It then sought to compel discovery from the
employee and his union. The trial court orally denied the motion to compel discovery
from the union at the expedited hearing and found that the employee had met his burden
of proof to support an order for certain medical benefits. As such, it ordered the
employer to authorize an appointment with the panel-selected physician. The employer
appealed. Following the filing of the notice of appeal, we remanded the case for the court
to issue a written order addressing its rationale for denying the employer’s motion to
compel production of records from the employee’s union. Thereafter, the trial court
issued an order granting in part the employer’s motion, which is a different result than the
court’s ruling at the expedited hearing. The case is now before us following that remand,
and, upon review of the record, we conclude the court’s denial of the employer’s motion
to compel is not properly before us. Further, we affirm the trial court’s order requiring
the employer to authorize an appointment with the panel-selected orthopedic physician,
and we remand the case.

Judge Meredith B. Weaver delivered the opinion of the Appeals Board in which
Presiding Judge Timothy W. Conner and Judge Pele I. Godkin joined.

1
J. Brent Moore, Nashville, Tennessee, for the employer-appellant, GEM Technologies,
Inc.

Chaddwick Eubank, Knoxville, Tennessee, employee-appellee, pro se

Factual and Procedural Background

Chaddwick Eubank (“Employee”) was working for GEM Technologies, Inc.
(“Employer”), when he alleged injuries resulting from a fall at work. He reported hurting
his left knee, arm, and back when he fell while walking across what he described as
“saddles” on March 27, 2023. 1 He testified he informed his foreman, Joey Edwards, and
his foreman’s supervisor, Wayne Edwards, about the fall on that day but stated he
declined medical treatment as he did not initially believe his injuries to be significant.
The next day, Employee reported to the University of Tennessee Medical Center
Emergency Department (“UT Medical Center”) with complaints of increased back pain
from a fall “a few days ago.” 2 The medical report from that provider contains no other
description of Employee’s complaints or any indication of where the fall occurred. 3
Employee was given an anti-inflammatory medication, steroids, and a muscle relaxer and
was discharged to follow up with the neurosurgeon who previously treated him.

Employee returned to UT Medical Center on April 2, 2023, with complaints of left
knee pain and back pain radiating into the right leg. The record indicates he reported
falling approximately eight feet from a ten-foot ladder, although the same medical record
later indicates Employee fell off a roof. He was diagnosed with lumbar radiculopathy
and a contusion to the left knee and discharged.

Employee saw his primary care physician, Dr. Raye-Ann Ayo, the following day.
At that time, he reported falling off a truss eight days earlier while hanging boards in a
barn and landing on his left hip and buttock, causing pain in his low back. There is no

1
There is no information in the record as to what type of work Employee or Employer was engaged in or
the meaning of the word “saddles” in that context.
2
Employee had treated previously with the same facility for back pain and right leg radicular symptoms
following a 2022 discectomy.
3
Per the report, “[Employee] states he has been seen in the emergency department [three] times since the
fall.” The attending nurse practitioner’s notes indicate she “[r]eviewed [Employee’s] prior imaging from
previous visits dated 3/25 and 3/27.” The record does not contain any medical reports or imaging from
these dates of service. Bates-stamped page 26 of the UT Medical Center records, admitted as an exhibit
at the hearing, is a report from Employee’s hospital visit of February 23, 2022, and it indicates it is “Page
7 of 41.” Bates-stamped page 27 of the UT Medical Center records is from the visit of March 28, 2023,
and it indicates it is “Page 5 of 41.” It appears, despite an affidavit from the records custodian suggesting
otherwise, that the medical records from UT Medical Center filed with the court are incomplete in several
pertinent ways. However, neither party objected to their admissibility.
2
mention of any knee injury in the record. Dr. Ayo advised him to call if there was no
improvement in six to eight weeks. A few days later, on April 7, 2023, Employee
reported to Blount Memorial Hospital complaining of back pain and left knee pain
following a fall in Michigan “ten days ago.” Nurse practitioner Kevin Jinks examined
Employee and prescribed non-steroidal anti-inflammatories, a steroid, and hydrocodone.
Two hours later, according to the record, a Walgreens pharmacy contacted Mr. Jinks and
informed him that “[Employee] has filled multiple narcotic prescriptions in the last few
days . . . and that he was well-known to them for drug and doctor shopping.” Mr. Jinks
told them not to fill the prescription for hydrocodone based on this information.

Employee returned to Dr. Ayo on April 14, 2023. She was not in the office, but,
through a telehealth appointment, he informed her he had also hurt his knee when he fell
off the truss as he had described previously. Dr. Ayo initiated a referral to an orthopedist,
Dr. William Oros, who had treated Employee previously. Employee was unable to see
Dr. Oros, however, due to an unpaid balance from the previous treatment.

Meanwhile, Employee contends he was regularly speaking with Wayne Edwards
regarding reporting his injury. On April 26, 2023, Mr. Edwards asked him to complete a
written statement describing how the injury occurred. In the written statement, Employee
stated he was injured on April 3 when he “was walking across the top of saddles [and]
slid . . . . Not sure how I landed.” Following that statement, Employer authorized him to
go to Occupational Health Systems, where he saw Physician’s Assistant Heather
Thompson on May 2, 2023. At that time, he described an injury to his left knee “while
walking across saddles from one until [sic] the other and the right foot slipped out from
under and [Employee] fell to the ground hyper extending the right knee/leg.” 4 He
reported that the injury occurred on March 27 and that he had gone to the hospital that
same day, at which time he was given a knee brace. 5 Ms. Thompson reviewed his x-rays
and referred him for an MRI. He returned on May 5, 2023, following the MRI, which
revealed a medial tibial plateau fracture and a lateral meniscus tear. Ms. Thompson
referred Employee for orthopedic treatment.

Employer provided a panel of orthopedists on May 11, 2023, but before Employee
made a selection and returned the panel, Employer terminated Employee on May 18,
2023, citing lack of work. Employee selected Dr. Matthew Rappe from the panel and

4
This appears to be the first indication in the record that Employee is claiming an injury to his right knee
instead of his left knee. It is unclear whether this is a typographical error or an accurate reflection of
Employee’s complaints on that visit.
5
The Occupational Health Systems medical record states the injury occurred on April 27, but there is an
addendum to the medical note indicating that was in error and the date should be March 27.
3
signed it May 27, 2023, but by that time Employer declined to authorize an appointment
based on the medical records it had received. 6

Employee later filed a petition for benefit determination in May 2023, and the
parties proceeded with discovery. Eventually, Employer filed two motions to compel
with the court: one motion to compel Iron Workers of Tennessee Valley and
Vicinity/Southern Benefit Administrators (“the Union”) to provide documents identified
in a subpoena duces tecum, and a second asking the court to compel Employee to respond
to its interrogatories regarding past medical care. The subpoena was served on
November 16, 2023 and specifically sought “any and all documentation including but not
limited to any attendance records, applications, pay records, benefit payments, separation
reports, medical records, completed internal union forms and statements from
[Employee] related to his sick pay, employment, or union membership.”

Both motions were denied in separate orders issued January 4, 2024. With respect
to the documents requested from the Union, the court relied on Tennessee Rule of Civil
Procedure 45.02 (2023), stating “a court order for a subpoena must provide protection to
a person that is neither a party nor a party’s officer from undue burden or expense
resulting from compliance.” As the Union was not a party, the court reasoned that much
of the requested information was maintained by Employer and that Employer had not
established a sufficient basis in the motion to compel to support an order compelling the
production of internal union forms and statements by Employee. In the order denying
Employer’s motion to compel Employee to provide more information in response to its
interrogatories, the court noted Employer failed to quote verbatim the interrogatory in
question or provide reasons supporting the motion as required by Tenn. Comp. R. and
Regs. 0800-02-21-.17(5) (2023). Furthermore, it stated Employer did not provide “any
basis to establish the relevance of the requested information.” 7 Neither order was
appealed.

Thereafter, Employer filed two more motions to compel. The first motion asked
the court to compel the Union to provide the information requested in another subpoena
in order to ascertain if Employee has worked at any union job since his termination from
Employer; the second motion to compel listed three interrogatories verbatim it alleged
had not been fully answered by Employee. Given the timing of the filing of these
additional motions, the trial court elected to address them at the expedited hearing.

6
Employer did not file a notice of denial; however, Employer offered this rationale at the hearing for its
refusal to authorize an appointment.
7
Employer also filed a motion to continue the expedited hearing for additional time to obtain the
documentation requested in the motions to compel, but this motion was also denied.
4
Employee was the only witness to testify at the January 31, 2024 expedited
hearing. 8 Prior to hearing any testimony, the court heard the motions to compel. Ruling
from the bench, the court denied both motions to compel, reasoning that Employer could
obtain information regarding subsequent employment from Employee through cross-
examination at the hearing and that Employee had provided information responsive to the
specific interrogatories that were the subject of that motion. 9 Employee stated he was
seeking medical benefits for the left knee only, as well as temporary total disability
benefits and payment of expenses related to past medical treatment. According to
Employee’s testimony, his foreman’s supervisor told him not to report the incident as a
workers’ compensation injury, which is why his history of the injury as reported to
various medical providers differed so significantly. 10 He also admitted “it looked a lot
like” he was “doctor shopping” and trying to obtain narcotic medications as described in
medical records, although he denied doing so. With respect to the date of injury on his
written statement, Employee testified that he recalled the accident as having occurred on
a Monday. He stated that he asked an administrative assistant for the date of his fall, and
she told him it was April 5 rather than the correct date of March 27, 2023. 11

Following the hearing, the court ordered Employer to authorize an appointment
with Dr. Rappe, reasoning that, at an interlocutory stage of a case, an “employee does not
have to prove compensability . . . to show entitlement to a panel of physicians.” (Quoting
McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *17-18 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015).) The
court did not award any temporary disability benefits and did not order Employer to pay
for past medical treatment Employee had obtained on his own. Employer has appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.

8
Although a transcript was filed, it was transcribed from the court’s recording of the proceedings.
Apparently due to technical difficulties, much of the testimony was inaudible, and thus only portions of
the testimony were available for our review.
9
These rulings were not contained in a written order. The table of contents for the technical record
contained two footnotes that stated the court “ruled from the bench” and denied both motions to compel.
There were also footnotes added to an Appendix to the trial court’s order reflecting similar information.
10
Employee attempted to enter purported text messages with Mr. Edwards as an exhibit at the hearing.
He was unable to provide proper foundation under Rule 901 of the Tennessee Rules of Evidence, so the
documentation was excluded from evidence.
11
Employee’s written statement of April 26, 2023 states the accident occurred on April 3, 2023, which
was a Monday. However, he testified at the hearing the administrative assistant told him April 5, 2023,
which was actually a Wednesday. This discrepancy was not clarified in the record.
5
See Tenn. Code Ann. § 50-6-239(c)(7) (2023). Moreover, a trial court’s decisions
regarding pre-trial discovery are reviewed under an abuse-of-discretion standard. See,
e.g., Bellsouth Telecoms. v. Howard, No. M2019-00788-WC-R3-WC, 2013 Tenn. LEXIS
343, at *7 (Tenn. Workers’ Comp. Panel Apr. 11, 2013). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2023).

Analysis

Employer presents two issues for appeal: (1) whether the court erred in denying
the motion to compel certain records from the Union; and (2) whether the court erred in
ordering Employer to provide an appointment with Dr. Rappe and any reasonable,
necessary, and related medical care recommended by Dr. Rappe.

Motion to Compel 12

Employer filed and served two subpoenas on the Union, the first on November 16,
2023, and the second on December 29, 2023, requesting multiple documents. The
subpoenas are identical in requesting “any and all documentation including but not
limited to any attendance records, applications, pay records, benefit payments, separation
reports, medical records, reports, completed internal union forms and statements from
[Employee] . . . relating to his sick pay, employment, or union membership.” At the
hearing, the trial court stated the following:

12
Employee contends that, because Employer did not appeal the January 4, 2024 denial of the first motion
to compel, this issue has been waived by Employer. He also argues that this issue was not listed in the
notice of appeal filed February 16, 2024. However, a second motion to compel production of the Union
records was filed and then heard and denied at the expedited hearing. Furthermore, we have stated
previously that we will consider issues raised in a litigant’s brief following a timely submitted notice of
appeal even if it not listed in the notice of appeal. See Morgan v. Macy’s, No. 2016-08-0270, 2016 TN
Wrk. Comp. App. Bd. LEXIS 39, at *24 (Tenn. Workers’ Comp. App. Bd. Aug. 31, 2016) (“Once an
appeal is properly perfected, the statute [citing Tenn. Code Ann. § 50-6-217(a)(2)(A) (2015)] does not
restrict the Appeals Board to considering only issues identified by the appealing party in a notice of
appeal, but allows consideration of issues specified and argued by a party as long as the issue was
properly presented and decided below.”).
6
And then with regard to the other motion to compel, that was in reference
to the subpoena to the union, and it looks like you provided some updated
information that the reason you were requesting that was to find out about
[Employee], any employment that he’s had since he left [Employer]. And I
believe that those are issues that he can answer today. You can question
him about whether or not he has worked anywhere since he left there.

The expedited hearing order itself, however, is silent regarding the court’s rationale for
denying the motion to compel. Without any written order explaining the court’s basis for
the denial, we were unable to properly consider the appeal of this issue. Consequently,
we remanded this case to the trial court for the limited purpose of supplementing the
record with a written order explaining the denial of Employer’s motion. See State v.
Byington, 284 S.W.3d 220, 223 (Tenn. 2009). On May 8, 2024, the trial court issued an
order granting in part Employer’s motion to compel, which was a different ruling than
was stated during the expedited hearing, and a supplemental record was submitted by the
trial court clerk to us on May 16, 2024.

We conclude this new order exceeded the parameters of our limited remand order.
The Tennessee Supreme Court has stated previously that trial courts must stay within the
parameters of a limited remand order. See, e.g., State v. Irick, 906 S.W.2d 440, 443
(Tenn. 1995) (citing Barger v. Brock, 535 S.W.2d 337, 341 (Tenn. 1976) (holding that,
on remand, trial courts must take action only within the bounds of the remand order to
promote stability and consistency in the appellate process)). Thus, we conclude the May
8, 2024 order granting in part Employer’s motion to compel the production of the union
records is outside the scope of this appeal.

Turning to the ruling from the bench denying Employer’s motion to compel the
production of documents from Employee’s union, there is still no written order
addressing the trial court’s ruling, and we only have a partial transcript to review due to
an inaudible recording. Our obligation is to review the record, and we must not speculate
as to the trial court’s reasoning or rationale. Lugo v. Lugo, No. W2020-00312-COA-R3-
CV, 2021 Tenn. App. LEXIS 54, at *5 (Tenn. Ct. App. Feb. 10, 2021). Moreover, if a
record is incomplete, an appellate court is “precluded from considering the issue.”
Majors v. Randstad Inhouse Servs., L.P., No. M2010-01975-WC-R3-WC, 2011 Tenn.
LEXIS 970, at *18 (Tenn. Workers’ Comp. Panel Oct. 19, 2011). Therefore, we
conclude this issue is not properly before us.

Medical Benefits

Employer also contends that Employee did not meet his burden of proof at the
expedited hearing of showing he is likely to prevail at a hearing on the merits in obtaining
medical benefits. It is well-settled that, at an expedited hearing, an employee’s burden of
proof is different than the burden at a compensation hearing. See, e.g., Buchanan v.

7
Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5
(Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015). As we stated in Buchanan, “[w]hile
we agree that an employee need not prove his or her claim by a preponderance of the
evidence at an expedited hearing to obtain temporary disability or medical benefits, an
employee nevertheless has the burden to come forward with sufficient evidence of an
injury by accident from which the court can conclude that he or she is likely to prevail at
a hearing on the merits, consistent with Tennessee Code Annotated section 50-6-
239(d)(1).” Id.

Employee admittedly provided various descriptions of how he was allegedly
injured to medical providers, most of which did not describe a work-related injury.
However, Employee asserted during the expedited hearing that, when reporting how his
injury had occurred to various medical providers, he was attempting to avoid describing a
work-related injury at Employer’s request. Furthermore, regarding the differing dates of
injury, Employee claimed a co-worker gave him the wrong date from the calendar when
he was completing his written statement at Employer’s request. A trial court is in the
best position to assess the credibility of witnesses appearing before it. See, e.g., Sirkin v.
Trans Carriers, Inc., No. 2015-08-0292, 2016 TN Wrk. Comp. App. Bd. LEXIS 22, at *8
(Tenn. Workers’ Comp. App. Bd. May 9, 2016). Here, Employer offered no witnesses or
evidence during the expedited hearing to refute Employee’s explanation of why he
offered differing accounts of how the alleged injury occurred.

Hence, Employee’s unrefuted testimony is that he reported a work-related injury
the day it occurred and that he obtained medical treatment on his own so Employer could
avoid filing a worker’s compensation claim. Once Employer authorized medical
treatment, Employee was referred by that provider to an orthopedic specialist, but
Employer refused to authorize the appointment. Under these circumstances, given
Employee’s uncontradicted testimony, we cannot conclude the evidence preponderates
against the trial court’s determination that Employee is likely to prevail at a hearing on
the merits in seeking certain medical benefits.

Conclusion

For the reasons stated above, we decline to review either the determination
denying the motion to compel or the subsequent order granting the motion to compel,
affirm the court’s order compelling Employer’s authorization of a medical appointment
with the panel-selected orthopedic physician, and remand the case. Costs on appeal are
taxed to Employer.

8
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Chaddwick Eubank ) Docket No. 2023-03-3754
)
v. ) State File No. 35481-2023
)
GEM Technologies, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Lisa A. Lowe, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 28th day
of May, 2024.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Brent Moore X bmoore@ortalekelley.com
Hallie Gillam hgillam@ortalekelley.com
Chaddwick Eubank X chaddwick1488@gmail.com
Lisa A. Lowe, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims

Matthew Keene
Acting Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-532-1564
Electronic Mail: WCAppeals.Clerk@tn.gov