                                                                                  FILED
                                                                                Oct 17, 2019
                                                                               09:31 AM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




      TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
        IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                       AT MURFREESBORO

CLIFTON HOLLAND,                         ) Docket No. 2019-05-0575
         Employee,                       )
v.                                       )
                                         )
GOODMAN GLOBAL, INC,                     ) State File No. 22705-2019
INC.,                                    )
       Employer,                         )
And                                      )
                                         )
INS. CO. OF NORTH AM.                    ) Judge Dale Tipps
           Carrier.                      )



    EXPEDITED HEARING ORDER GRANTING REQUESTED BENEFITS


       This case came before the Court on October 10, 2019, for an Expedited Hearing
on whether Mr. Holland is entitled to additional medical or temporary disability benefits.
To receive these benefits, Mr. Holland must show he gave proper notice of his injury and,
if so, that his injury arose primarily out of and in the course and scope of his
employment. For the reasons below, the Court holds Mr. Holland met both of these
burdens and is entitled to the requested medical benefits. However, he is not entitled to
the requested temporary disability benefits at this time.

                                    History of Claim

       Mr. Holland testified he injured his knee on January 15, 2019, when he stepped off
a skid and twisted his leg. He filed an accident report with the company nurse the next
day. Mr. Holland returned to the nursing station several times over the next few weeks,
where he received ice packs and ibuprofen until the nursing staff referred him to a doctor
in March.

      Mr. Holland selected Lynchburg Family Medicine from a panel on March 27 and
saw nurse practitioner Conan Carter that day. NP Carter’s records show that Mr. Holland

                                            1
described knee pain since twisting his knee at work in January. After an x-ray, NP Carter
noted left-knee pain and swelling and told Mr. Holland to continue with ibuprofen and
biofreeze as needed. He also said to continue wearing a knee compression sleeve while
at work. Over the next two visits, Mr. Holland had an MRI that showed a medial
meniscus tear, and NP Carter referred him to an orthopedist.

      Mr. Holland saw an orthopedic doctor, Stanton Davis, on April 24. Dr. Davis
confirmed the meniscus tear and recommended an arthroscopic partial meniscectomy.
He also placed Mr. Holland on restricted duty.

     Goodman did not approve the recommended surgery but filed a Notice of Denial
on May 9. Mr. Holland has had no further medical treatment.

       On cross-examination, Mr. Holland admitted that he only filled out one incident
report and that he did so the day after the injury. He agreed that the date of the report
was March 27.

       Christine Holland, Mr. Holland’s wife, testified about another inconsistent date in
the medical records. She explained that when she filled out most of the intake documents
at Dr. Davis’s office on April 24, she erroneously identified the injury date as February
15, instead of January 15.

       The parties stipulated to a weekly compensation rate of $501.43.

        Mr. Holland requested that the Court order Goodman to provide medical treatment
and pay temporary disability benefits. He explained that any discrepancy in the dates of
injury in his medical records was merely a “human mistake.”

        Goodman contended that Mr. Holland is not entitled to any benefits. It first
argued that he failed to give notice of a January 15 injury until he filled out the March 27
incident report. Goodman next claimed Mr. Holland failed to prove he is likely to
establish that he suffered an injury that arose primarily out of and in the course and scope
of his employment. It argued that he only filled out one injury report, the day after the
injury, which made his date of injury March 26, not the January 15 date he claimed in his
Petition for Benefit Determination. Goodman argued that this raises questions about
whether the injury occurred at work.

                           Findings of Fact and Conclusions of Law

      Mr. Holland must provide sufficient evidence from which this Court might
determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

                                             2
                                          Notice

        Tennessee Code Annotated section 50-6-201(a)(1) provides that an injured
employee must give written notice of an injury within fifteen days unless it can be shown
that the employer had actual knowledge of the accident or that “reasonable excuse for
failure to give the notice is made to the satisfaction of the tribunal.” Further, Tennessee
Code Annotated section 50-6-201(a)(3) provides that failure to give notice will not bar a
claim unless the employer can show it was prejudiced by the lack of notice. Prejudice
may be found if the employer is denied the opportunity to make an investigation while
the facts are accessible or to provide timely and proper treatment for the injured
employee. See Masters v. Indus. Garments Mfg. Co., 595 S.W.2d 811, 815 (Tenn. 1980).

       Goodman contended that Mr. Holland failed to provide proper notice of his
January 15 injury because he did not file the incident report until March 27. This
argument is unpersuasive, as it ignores Mr. Holland’s testimony that he reported the
injury the next day and received on-site treatment from Goodman’s nurse for several
weeks. Goodman put on no proof to rebut that testimony. Therefore, since Mr. Holland
established that he gave notice sufficient to trigger on-site medical treatment, the Court
finds that Goodman had actual knowledge of the incident.

      Further, even if Goodman had no knowledge of Mr. Holland’s work injury until
two months later, it presented no evidence of any prejudice to its ability to defend this
claim or provide proper medical treatment. For these reasons, the Court holds that Mr.
Holland is likely to prevail at a hearing on the merits on notice.

                                     Compensability

        To prove a compensable injury, Mr. Holland must show that his alleged injuries
arose primarily out of and in the course and scope of his employment. This includes the
requirement that he must establish a work-related incident, or specific set of incidents,
identifiable by time and place of occurrence. Tenn. Code Ann. § 50-6-102(14)(A).
Further, he must show, “to a reasonable degree of medical certainty that [the incident]
contributed more than fifty percent (50%) in causing the . . . disablement or need for
medical treatment, considering all causes.” “Shown to a reasonable degree of medical
certainty” means that, in the opinion of the treating physician, it is more likely than not
considering all causes as opposed to speculation or possibility. See Tenn. Code Ann. §
50-6-102(14).

       Applying these principles to the facts of this case, the Court first notes that Mr.
Holland described a specific, work-related incident. That is, he injured his knee when he
slipped on a skid at work. Goodman presented no evidence of any other cause of the
injury. Instead, it questioned whether the injury actually occurred as Mr. Holland

                                            3
claimed.

       The Court recognizes the injury-date discrepancies Goodman identified.
However, the bulk of the evidence supports Mr. Holland’s claim of a January 15 injury.
Although Mr. Holland completed the incident report in March, a review of the report
shows that Mr. Holland indicated his date of injury as “Jan. 2019.” This is consistent
with his description of the injury. NP Carter’s records further bolster that claim, stating
that Mr. Holland described knee pain since twisting his knee at work in January. He also
instructed Mr. Holland to continue with ibuprofen and biofreeze and to continue wearing
a knee compression sleeve while at work, which suggests Mr. Holland had been dealing
with his knee problem for some time. Mrs. Holland’s error in filling out the patient
information sheet explains the appearance of a February 15 injury date in Dr. Davis’s
records.

       Further, minor variations in dates and times are not uncommon, nor are they
always indicative of an intent to mislead. Even if minor and insignificant details vary, an
injured worker should not be penalized simply for being a poor historian. Orman v.
William Sonoma, 803 S.W.2d 672, 677 (Tenn. 1991). Mr. Holland’s willingness to admit
that he only filled out one injury report is curious,1 but the Court finds it insufficient to
overcome his steady, consistent, unequivocal, and credible testimony that he hurt his
knee on January 15. Also, most of the medical records and the injury report support that
account. Therefore, the Court holds that Mr. Holland demonstrated he is likely to
establish a specific incident, identifiable by time and place, at a hearing on the merits.

        The question then is whether Mr. Holland appears likely to prove at a hearing on
the merits that his work primarily caused the injury. The only medical opinion regarding
causation is in Dr. Davis’s Work Restriction Form, where he checked the box marked,
“IS considered work related.” Dr. Davis’s response fails to address whether work was
the primary cause of the injury. However, “a doctor need not couch a medical opinion in
a rigid recitation of the statutory definition, of an injury, but must include sufficient proof
from which the trial court can conclude that the statutory requirements of an injury as
defined in section 50-6-102(14) are satisfied.” Montgomery v. Mitchell Indus. Tire Co.,
Inc., 2019 TN Wrk. Comp. App. Bd. LEXIS 32, at 9 (July 17, 2019). In reaching that
conclusion, the Court can consider expert opinions in conjunction with Mr. Holland’s lay
testimony as to his condition. Id.

       Considering Dr. Davis’s opinion that the injury is work-related, Mr. Holland’s
credible account of a specific workplace incident, and the lack of any proof to the
contrary, the Court concludes that Mr. Holland is likely to prove that his alleged injuries
1
  Mr. Holland might have been mistaken about filling out only one incident report, or he might have only
verbally reported the injury to Goodman’s nursing staff. The Court cannot determine the reason, mostly
because Goodman put on no proof regarding Mr. Holland’s treatment with the company nurse or what
triggered that treatment.
                                                   4
arose primarily out of and in the course and scope of his employment.

                                    Medical Benefits

       Having found Mr. Holland is likely to prevail in establishing a compensable
aggravation of his preexisting condition, the Court must address his request for medical
benefits. Under the Workers’ Compensation Law, “the employer or the employer’s agent
shall furnish, free of charge to the employee, such medical and surgical treatment . . .
made reasonably necessary by accident[.]” Tenn. Code Ann. § 50-6-204(a)(1)(A). Mr.
Holland is therefore entitled to continuing treatment, including any reasonable and
necessary surgery, with Dr. Davis as his authorized physician.

                               Temporary Total Disability

       To receive temporary total disability benefits, Mr. Holland must establish that (1)
he became disabled from working due to a compensable injury; (2) a causal connection
between his injury and his inability to work; and (3) his period of disability. Jones v.
Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11,
2015). None of the medical records showed that Mr. Holland’s physicians took him
completely off work. Without evidence that he was “disabled from working,” Mr.
Holland has not proven he is likely to succeed on a claim for temporary total disability
benefits.

                              Temporary Partial Disability

       Temporary partial disability (TPD) benefits are available when the temporary
disability is not total. Specifically, TPD “refers to the time, if any, during which the
injured employee is able to resume some gainful employment but has not reached
maximum recovery.” Id. An employee may receive TPD benefits when the treating
physician has him to return to work with restrictions but the employer either (1) cannot
return the employee to work within those restrictions or (2) cannot provide restricted
work that pays the employee’s average weekly wage on the date of injury. Id. at *8.

       Dr. Davis assigned a number of restrictions when he saw Mr. Holland on April 24.
However, the parties submitted no evidence regarding Mr. Holland’s current employment
status or whether Goodman offered him work within those restrictions. Without this
information, the Court must deny his request for TPD benefits at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Goodman shall provide Mr. Holland with any medical treatment made reasonably
      necessary by his January 15, 2019 injury. Dr. Davis shall be the authorized
      treating physician.

                                            5
   2. Mr. Holland’s request for temporary disability benefits is denied at this time.

   3. This case is set for a Scheduling Hearing on January 21, 2020, at 9:00 a.m. You
      must call toll-free at 855-874-0473 to participate. Failure to call might result in a
      determination of the issues without your further participation. All conferences are
      set using Central Time.

   4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
      with this Order must occur no later than seven business days from the date of entry
      of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3).
      The Insurer or Self-Insured Employer must submit confirmation of compliance
      with this Order to the Bureau by email to WCCompliance.Program@tn.gov no
      later than the seventh business day after entry of this Order. Failure to submit the
      necessary confirmation within the period of compliance might result in a penalty
      assessment for non-compliance. For questions regarding compliance, please
      contact the Workers’ Compensation Compliance Unit via email at
      WCCompliance.Program@tn.gov.

      ENTERED October 17, 2019.



                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims



                                      APPENDIX

Exhibits:
   1. Affidavit of Clifton Holland
   2. Records from The Orthopedic Center
   3. Records from NP Conan Carter
   4. Goodman medical report forms
   5. MRI report of April 4, 2019
   6. Written witness statements (Identification Only)
   7. Notice of Denial of Claim
   8. Wage Statement
   9. Employee’s Report of Incident
   10. Choice of Physician Form


                                            6
Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing


                           CERTIFICATE OF SERVICE

      I certify that a copy of the Expedited Hearing Order was sent as indicated on
October 17, 2019.

   Name                  Certified         Via     Service Sent To
                         Mail              Email
   Clifton Holland            X               X    98 Slatton Rd.
                                                   Flintville, TN 37335
                                                   Cholland8638@live.com
   Peter Rosen,                              X     prosen@vkbarlaw.com
   Employer’s Attorney



                                           _____________________________________
                                           Penny Shrum, Clerk of Court
                                           Court of Workers’ Compensation Claims
                                           WC.CourtClerk@tn.gov




                                             7
