                                                                                       FILED
                                                                                September 14, 2016
                                                                                      TENNESSEE
                                                                                 WORKERS' COMPENSATION
                                                                                    APPEALS BOARD

                                                                                     Time: 2:50 P.M.

            TENNESSEE BUREAU OF WORKERS' COMPENSATION
               WORKERS' COMPENSATION APPEALS BOARD

David Young                                  )   Docket No. 2015-06-0860
                                             )
v.                                           )   State File No. 39751-2015
                                             )
Young Electric Co., et al.                   )
                                             )
                                             )
Appeal from the Court of Workers'            )
Compensation Claims                          )
Joshua Davis Baker, Judge                    )


                 Reversed and Remanded-Filed September 14, 2016


This is the second interlocutory appeal in this case arising out of an injury the employee
alleges occurred when he lost his balance and fell while attempting to lift a shopping cart
loaded with construction materials. Following the first expedited hearing, the trial court
awarded medical benefits, but denied temporary disability benefits, finding the employee
did not establish he was likely to prevail at a hearing on the merits. We affirmed the
award of medical benefits and the denial of temporary disability benefits, concluding the
employee did not present sufficient medical proof to establish he was unable to work as a
result of his injury. The employee subsequently filed a motion to compel temporary
disability benefits supported by the authorized physician's responses to three written
questions presented by the employee. Based on the physician's responses, the trial court
awarded temporary disability benefits for the two periods in question, and the employer
has appealed. We reverse the trial court's award of temporary disability benefits and
remand the case for further proceedings as may be necessary.

Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, and Judge Timothy W. Conner joined.

Stephen Morton, Nashville, Tennessee, for the employer-appellant, Young Electric Co.

Michael Fisher, Nashville, Tennessee, for the employee-appellee, David Young




                                            1
                                Factual and Procedural Background

       In a May 25, 2016 opinion, we affirmed the trial court's award of medical benefits
and its denial of temporary disability benefits following an expedited hearing. As
pertinent to this appeal, we stated:

                   David Young ("Employee") is a forty-year-old resident of
           Humphreys County, Tennessee. On May 11, 2015, he worked as an
           apprentice electrician for Young Electric Company, Inc. 1 ("Employer"),
           which had contracted to perform electrical work for a Kroger store in
           Nashville undergoing renovations. On the date of the accident, employees
           were using Kroger shopping carts to transport construction materials to the
           "Conex" for overnight storage. 2 Employee alleged that during the course of
           performing this work-related activity, he lifted a shopping cart containing
           forty to sixty pounds of construction materials off the ground and attempted
           to move it from the entrance to the Conex. As he did so, he lost his footing,
           fell back, and the cart fell on top of him, striking his head. A coworker,
           Mr. William Harvey, claimed in an affidavit to have witnessed the injury.

                 Employee testified that he did not immediately experience enough
          pain to concern him, so he completed his shift without notifying Employer
          of the incident. Employee stated, however, that early the next morning, at
          2:00 or 3:00 a.m., he awoke in "excruciating pain." Later that day, he
          decided to visit his primary care physician, Dr. Desmond White. On his
          way to Dr. White's office, Employee alleged that he called his supervisor,
          John Boatfield, and told him "exactly what happened; that I had been
          injured at work." Employee claimed that Mr. Boatfield told him to bring a
          doctor's note when he returned to work. Mr. Boatfield testified on behalf
          of Employer at the expedited hearing and stated he did not recall this
          conversation. He further observed that his daily log did not contain any
          indication that an accident had been reported on the date of the alleged
          phone call, as would have been proper protocol.

                 Over the next several days, Employee visited Dr. White's office on
          May 15 and May 20. Medical records from the May 12 and May 15 visits
          contain no evidence that Employee reported suffering a work-related injury.
          Records from the May 12 visit reveal that Employee was experiencing
          severe pain in his right shoulder which radiated down his right arm. The
          report noted "Onset: May 11, 2015," but also stated "Context: there is no
1
    The record indicates there is no familial relationship between Employee and Employer.
2
 A Conex is a trailer approximately forty feet in length. It has double doors, no wheels, and sits about
eight inches above the ground.

                                                     2
       injury." Dr. White made similar observations on May 15. Dr. Daniel
       Shrock, a chiropractor, treated Employee on May 18, 2015. On the "New
       Patient Application and Information" form, someone crossed out the
       sections entitled "Insurance" and "Accident Information." Employee wrote
       on the form that the reason for the visit was a "pinched nerve" with
       symptoms first appearing on May 12, 2015.

              Employee returned to work, but on May 19 he allegedly aggravated
       his condition while _pullin~ a wire. Employee did not return to work for
       Employer after May 19.           On May 20, at approximately 6:00 a.m.,
       Employee called Mr. Boatfield to inform him that he would be off work a
       few days due to his injury. Mr. Boatfield claimed that this phone call on
       May 20 was the first notice he received of Employee's May 11 injury.
       After the May 20 phone call, Mr. Boatfield filled out a First Report of
       Work Injury. A May 20 medical report from Dr. White reflects a change in
       the description of Employee's condition. Specifically, Employee described
       the injury as "lifting a cart at work[,] the next day shoulder started hurting,
       then reaggervated [sic] it yesterday by pulling on wire."

              Employer did not provide a panel of physicians following the
       telephone call between Employee and Mr. Boatfield on May 20, 2015. As
       a result, Employee continued to seek out medical treatment on his own.
       After seeing Dr. White in mid-May, he saw Dr. Brook Adams, who
       performed an MRI and an EMG, which revealed spondylosis, stenosis, a
       disc protrusion at the C6-7 level of the cervical spine, and radiculopathies
       at the C7-8 level. On June 9, Employee consulted Dr. Gregory Lanford, a
       neurosurgeon, who opined that Employee's work-related accident caused
       an injury to his cervical spine and recommended surgery.

               Eventually, Employer provided a panel of physicians, and on June
       27, 2015, Employee chose Dr. N.K. Singh as his authorized physician.
       However, Employer refused to schedule an appointment and denied the
       claim on the grounds that the inconsistencies in the medical records called
       into question whether the alleged accident occurred as reported. Employee
       filed a Petition for Benefit Determination on October 26, 2015 ... seeking
       temporary disability and medical benefits. After the hearing, the trial court
       issued an Expedited Hearing Order granting medical benefits but denying
       temporary disability benefits.



3
 Employee testified he received no income from May 19, 2015, to February 2, 2016, when he began
working for Miller Electric.
                                              3
       Our May 25, 2016 opinion affirming the trial court’s denial of temporary disability
benefits included the following:

        Employee has not presented sufficient medical proof to establish that he
        was unable to work as a result of his injury, having come forward with no
        restrictions issued by a physician addressing his ability to work. When
        asked at the expedited hearing whether Employer would have been able to
        accommodate any restrictions, Mr. Boatfield [Employee’s supervisor]
        indicated that he was not sure what type of work could have been provided
        in light of the nature of the employment. However, Employee provided no
        actual restrictions for Mr. Boatfield to review and presented no proof to
        establish that any physician assigned work restrictions or opined Employee
        was unable to work during the relevant period of time.

        Thereafter, Employee sent Dr. Lanford, the authorized treating physician, a letter
requesting his opinions regarding Employee’s ability to work and whether he had any
restrictions. The letter posed three questions, the first being “[a]s a result of this injury,
has [Employee] been unable to work at full duty[],” to which Dr. Lanford replied “yes.”
The second question inquired “for how long has he been unable to work or work at
limited duty,” and Dr. Lanford replied “since injury of 5/11/15.” The last question asked
“[w]hat work restrictions should [Employee] observe as a result of this injury,” and Dr.
Lanford responded, “[n]o overhead work.”

        Employee filed a Motion to Compel Temporary Benefits on July 12, 2016, asking
the court to award temporary disability benefits for two separate time periods.4 The first
period began on May 20, 2015, the date immediately following Employee’s last day of
work for Employer, and ended on February 2, 2016, the date Employee began working
for Miller Electric. The second period began on May 2, 2016, the date Employee was
laid off from work by Miller Electric, and continued to the “present or until he is returned
to work, whichever comes sooner.” Dr. Lanford’s responses to the June 8, 2016 letter
were filed with Employee’s motion in support of his request for temporary disability
benefits.

        On July 27, 2016, the trial court heard arguments from counsel addressing
Employee’s request for temporary disability benefits. However, no witnesses were called
to testify and no additional records were admitted into evidence beyond Dr. Lanford’s
written responses to the three questions addressed above. The trial court issued an order

4
  A workers’ compensation judge “may, at the judge’s discretion, hear disputes over issues provided in
the dispute certification notice concerning the provision of temporary disability or medical benefits on an
expedited basis . . . .” Tenn. Code Ann. § 50-6-239(d)(1) (2015). Regardless of how a motion is styled,
we will analyze a request for such benefits filed prior to a compensation hearing in accordance with the
standards and procedure set forth in Tennessee Code Annotated section 50-6-239(d) and any applicable
regulations of the Bureau of Workers’ Compensation.
                                                    4
on August 3, 2016, which stated that Employee "provided a note from Dr. Lanford
stating he lacked the ability to work following his injury on May 11, 2015," and that
Employee's motion "also included a notice of restrictions that prohibited [Employee]
from performing overhead work." Concluding that Employee "possessed some capacity
to perform limited work," the trial court determined that Employee's "recovery lays in
temporary partial disability benefits." The trial court noted that, "despite Dr. Lanford's
opinion that [Employee] could not work after May 11, 2015, [Employee] admitted he
worked for [Employer] on May 20, 2015, and then returned to work for another employer
on February 2, 2016," and continued working until this employer laid him off on May 2,
2016.

        The trial court ultimately concluded that, "[b]ased on these facts, the Court finds
[Employee] carried his burden of proving entitlement to temporary partial disability
benefits for the period from May 20, 2015, through February 1, 2016 ... and from May
3, 2016, through the date of this order." The trial court ordered Employer to pay
$18,532.30 in accrued temporary partial disability benefits and to "continue payments
until [Employee] is no longer eligible for those benefits." Employer has appealed.

                                  Standard of Review

       The standard we apply in reviewing a trial court's decision is statutorily mandated
and limited in scope. Specifically, "[t]here shall be a presumption that the findings and
conclusions of the workers' compensation judge are correct, unless the preponderance of
the evidence is otherwise." Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court's
decision must be upheld unless the rights of a party "have been prejudiced because
findings, inferences, conclusions, or decisions of a workers' compensation judge:

      (A)    Violate constitutional or statutory provisions;
      (B)    Exceed the statutory authority of the workers' compensationjudge;
      (C)    Do not comply with lawful procedure;
      (D)    Are arbitrary, capricious, characterized by abuse of discretion, or
             clearly an unwarranted exercise of discretion; or
      (E)    Are not supported by evidence that is both substantial and material
             in the light of the entire record."

Tenn. Code Ann. § 50-6-217(a)(3) (2015). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.

                                        Analysis

       Employer presents two issues for review, each questioning whether the trial court
erred in awarding benefits for the two periods of contested temporary disability. For the

                                            5
reasons that follow, we find that the evidence presented to date preponderates against the
trial court's determination that Employee will likely prevail in establishing an entitlement
to temporary disability benefits at a hearing on the merits.

        Initially, we reiterate that at an expedited hearing, an employee need not prove
every element of his or her claim by a preponderance of the evidence, but must 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, consistent with Tennessee Code
Annotated section 50-6-239(d)(l) (2014). McCord v. Advantage Human Resourcing, No.
2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers' Comp.
App. Bd. Mar. 27, 2015). This lesser evidentiary standard "does not relieve an employee
of the burden of producing evidence of an injury by accident that arose primarily out of
and in the course and scope of employment at an expedited hearing, but allows some
relief to be granted if that evidence does not rise to the level of a 'preponderance of the
evidence."' Buchanan v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp.
App. Bd. LEXIS 39, at *6 {Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).

         To receive temporary total disability benefits, an employee must prove (1) total
disability from working as the result of a compensable injury; (2) a causal connection
between the injury and the inability to work; and (3) the duration of the period of
disability. Simpson v. Satterfield, 564 S.W.2d 953, 955 {Tenn. 1978). As the Tennessee
Supreme Court's Special Workers' Compensation Appeals Panel observed, "[t]emporary
partial disability refers to the time, if any, during which the injured employee is able to
resume some gainful employment but has not reached maximum recovery." Williams v.
Saturn Corp., No. M2004-01215-WC-R3-CV, 2005 Tenn. LEXIS 1032, at *6 {Tenn.
Workers' Comp. Panel Nov. 15, 2005); see Tenn. Code Ann. § 50-6-207(2) (2015).
Temporary restrictions assigned by physicians during an injured worker's medical
treatment do not establish an entitlement to temporary disability benefits if the employee
is able to work without loss of income. See Long v. Mid-Tenn. Ford Truck Sales, 160
S.W.3d 504, 511 (Tenn. 2005); Vinson v. Firestone Tire and Rubber Co., 655 S.W.2d
931, 933 {Tenn. 1983).

        In this case, there is no medical proof in the record concerning Employee's ability
to work during the time periods in question other than Dr. Lanford's responses to
Employee's June 8, 2016 letter. Employee did not present to Employer any medical
record or note indicating he had restrictions assigned by a physician, depriving Employer
of any opportunity to make a meaningful decision to accommodate whatever restrictions
may have been imposed for the time periods in question. In the initial expedited hearing,
the trial court noted that "[i]t was not clear from [the supervisor's] testimony, however,
that [the supervisor] knew of any workplace restrictions imposed on [Employee]." In the
first appeal, we determined that "Employee [had] not presented sufficient medical proof
to establish that he was unable to work as a result of his injury, having come forward with
no restrictions issued by a physician addressing his ability to work." We noted that

                                            6
"Employee provided no actual restrictions for [the supervisor] to review and presented no
proof to establish that any physician assigned work restrictions or opined Employee was
unable to work during the relevant period of time."

        In the order presently under review, the trial court again noted that "[i]t was not
clear from [the supervisor's] testimony, however, that [the supervisor] knew of any
workplace restrictions imposed on [Employee]." Nonetheless, the trial court noted "[i]n
any event, it was clear from testimony that [Employer] did not return [Employee] to
work." Based on these determinations and Dr. Lanford's responses to the three questions
presented to him, the trial court awarded benefits for the disputed periods of temporary
disability.

        The question before us is whether the preponderance of the evidence supports the
trial court's determination that Employee will likely prevail at a hearing on the merits in
establishing entitlement to temporary disability benefits for the two periods in question.
More specifically, the issue is whether Dr. Lanford's responses to the three questions
posed by Employee, considered with the proof adduced at the initial expedited hearing, is
sufficient to support the trial court's determination that, at trial, Employee would likely
establish he was unable to work during the periods in question as a result of his injury.

        In response to the first question, Dr. Lanford opined Employee had "been unable
to work at full duty." Responding to the second question asking "for how long has he
been unable to work or work at limited duty," (emphasis supplied), he wrote, "since [the]
injury of 5/11115." It is unclear from this question and response whether Dr. Lanford's
opinion was that Employee was unable to perform any work since his May 11, 2015
injury, or whether his opinion was that Employee could perform limited duty work from
the date of his injury. His response to the final question, which asked what work
restrictions "should [Employee] observe as a result of this injury," was "no overhead
work." Stating that Dr. Lanford "prohibited [Employee] from performing overhead
work," the trial court concluded that "because [Employee] possessed some capacity to
perform work, his recovery lays in temporary partial disability benefits." Dr. Lanford's
opinions were not provided to Employer until June 8, 2016, or thereafter, and it is unclear
from those opinions during what time period Dr. Lanford felt Employee should "observe"
an overhead work restriction. 5

      In our opinion, it is significant that Employee testified unequivocally at the initial
expedited hearing that he was able to resume gainful employment subsequent to his May
11, 2015 injury. Employee testified he began working with another Employer on
February 2, 2016 "about 74 hours a week," performing work similar to the work he
5
  The third question presented to Dr. Lanford was posed in the present tense, indicating that Dr. Lanford
was to opine about Employee's current restrictions as of the date of his response. The question did not
ask Dr. Lanford to opine about restrictions Employee may have had prior to the date of the June 8, 2016
inquiry.

                                                   7
performed with Employer. Although Employee testified he performed the work with "a
little bit of difficulty," he nonetheless was able to work a significant number of hours per
week until he was laid off and was earning a higher wage while doing so. The record is
silent as to why Employee was laid off in May 2016, or whether his lay-off was related to
his work injury with Employer or any physical restrictions. Although this work was
between the two periods of contested disability, there is no proof that work restrictions
were in place prior to Employee's work with the subsequent employer. Moreover, as
previously noted, Employer was not provided any record of work restrictions during
either period of contested disability, and it was never given the opportunity to consider
accommodating whatever work restrictions might have existed. In short, the evidence
presented to date shows that Employee has, in fact, worked at full duty for several
months since his injury, contrary to the opinion expressed by Dr. Lanford that Employee
has been unable to work at full duty since the date of his injury. Dr. Lanford's opinions
are less than clear concerning whether Employee could work after his injury, whether
Employee could perform limited or restricted work after his injury, and at what point
Employee was to "observe" work restrictions. Considering the limited medical evidence
presented to date and the testimony presented at the initial expedited hearing, we find the
preponderance of the evidence addressing the disputed periods of temporary disability to
be otherwise than found by the trial court.

                                       Conclusion

        For the above reasons, we reverse the trial court's decision awarding temporary
disability benefits and remanded the case for such additional proceedings as may be
necessary.

                                                 ~----
                                                 Workers' Compensation Appeals Board




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

David Young                                              )   Docket No.    2015-06-0860
                                                         )
v.                                                       )   State File No. 39751-2015
                                                         )
Young Electric Co., et al.                               )


                                     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 14th day of September, 2016.
 Name                    Certified   First Class   Via   Fax       Via      Email Address
                         Mail        Mail          Fax   Number    Email

 Michael Fisher                                                      X      mfisher@ddzlaw.com
 Stephen Morton                                                      X      Stephen.morton@mgclaw.com
 Joshua David Baker,                                                 X      Via Electronic Mail
 Judge
 Kenneth M. Switzer,                                                 X      Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                 X      Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: Matthew.Salyer@tn.gov
