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

LONNIE PERRY, JR.,                             )   Docket No. 2017-05-0177
         Employee,                             )
v.                                             )
GOLF CARTS FORE LESS,                          )   State File No. 85136-2016
         Employer,                             )
And                                            )
ACCIDENT FUND,                                 )   Judge Dale Tipps
         Insurance Carrier.                    )
                                               )

             EXPEDITED HEARING ORDER GRANTING BENEFITS


        This matter came before the undersigned workers’ compensation judge on August
3, 2017, for an Expedited Hearing. The present focus of this case is whether Mr. Perry is
entitled to medical and temporary disability benefits for his alleged right shoulder injury.
The central legal issue is whether Mr. Perry is likely to establish at a hearing on the
merits that he suffered an injury arising primarily out of and in the course and scope of
his employment. For the reasons set forth below, the Court holds Mr. Perry is likely to
meet this burden and is entitled to medical benefits, but not temporary disability benefits,
at this time.

                                      History of Claim

       Mr. Perry testified that he felt a “pop” in his right shoulder while lifting a golf-cart
battery at work on September 12, 2017. He reported the injury to John Phillips, the
owner of Golf Carts Fore Less (GCFL), and as his symptoms worsened over the
following days, he repeatedly requested medical treatment. Mr. Phillips initially told him
he should seek treatment under his wife’s medical insurance. GCFL did not provide a
panel of physicians until November 14. Mr. Perry selected Dr. Austin Adams from the
panel.

       Mr. Phillips’ version of the above events was quite different. Regarding the
injury, he admitted Mr. Perry told him about hurting his shoulder on September 12.

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However, Mr. Phillips claimed he told Mr. Perry to see a doctor if necessary and that
GCFL had workers’ compensation coverage. However, Mr. Perry never claimed a work
injury or requested treatment until after he was fired. Further, Mr. Phillips said he never
refused to provide workers’ compensation benefits and reported the claim to his carrier
sometime in mid-October.

        As to the treatment Mr. Perry received for his injury, Dr. Adams first saw him on
November 18. He diagnosed shoulder strain and placed Mr. Perry on temporary physical
restrictions. At a later visit on November 29, Dr. Adams referred him to an orthopedist.

       GCFL provided a panel and then, at Mr. Perry’s request, provided a second panel
that included Dr. Russell McKissick, who had previously treated Mr. Perry for other
problems. GCFL scheduled a visit with Dr. McKissick but denied the claim before the
appointment because it was “unable to verify a work related injury to his right shoulder.”

       Following the denial, Mr. Perry sought treatment on his own with Dr. McKissick.
He diagnosed a rotator cuff and biceps tendon tear and arthroscopically repaired them on
January 31, 2017. Dr. McKissick’s most recent note of July 19 stated that Mr. Perry
continued to suffer pain and stiffness. Dr. McKissick also noted “he may have an
overlying radicular component as well” and that Mr. Perry was seeing a pain
management specialist, who ordered a cervical MRI. Mr. Perry continues to see Dr.
McKissick. Mr. Perry submitted proof showing that his out-of-pocket expenses for
treatment totaled $3,755.82.

       In response to an inquiry about causation, Dr. McKissick stated in a letter that Mr.
Perry’s rotator cuff and biceps tendon injuries were “greater than 51% due to the work-
related incident.”

       A main point of contention during the hearing was the circumstances under which
Mr. Perry’s employment at GCFL ended on October 24. Much of the dispute involved a
GCFL golf cart that Mr. Perry sold.1 Mr. Perry said Mr. Phillips authorized him to take
the cart home to try to sell it. He testified this was a fairly common practice and he sold
the cart for $2,750.00 by displaying it in his neighbor’s yard near the highway. Mr. Perry
then withheld the money from the sale until Mr. Phillips reported his claim. Mr. Phillips
proceeded to accuse him of stealing the cart and terminated him, saying that nobody at
the shop wanted Mr. Perry to return. Mr. Perry denied stealing the cart and believed his
work injury was part of the reason for his termination. He stated he gave Mr. Phillips the
money from the sale of the cart after he confirmed that Mr. Phillips had reported Mr.
Perry’s work injury to the Bureau.

1
 The parties also presented testimony and other evidence about a motorcycle that Mr. Perry took in trade on another
golf cart sale. Mr. Phillips said he allowed Mr. Perry to take the motorcycle home to try to sell it, but Mr. Perry
never gave him the money from that sale. Mr. Perry testified he sold the motorcycle and gave Mr. Phillips the
proceeds. There is no allegation that the motorcycle was related in any way to Mr. Perry’s termination.

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       Mr. Phillips testified that Mr. Perry had no permission to take the cart home to
sell. He discovered the missing cart and asked Mr. Perry about it. Mr. Perry told him
someone stole the cart from the store. After Mr. Phillips confronted him with the result
of his investigation – that Mr. Perry had taken the cart and sold it out of his neighbor’s
yard – Mr. Perry met him the next morning and gave him the $2,750. At that point, Mr.
Perry said, “everyone out there is going to think I’m a thief.” He also told Mr. Phillips
that he was going to the doctor and would file a workers’ compensation claim.

       Mr. Perry contended no actual dispute exists regarding the cause of his shoulder
injury. He sought medical treatment with Dr. McKissick, including reimbursement of his
out-of-pocket expenses. He also sought temporary disability benefits from November 18,
2016, to the present, based upon GCFL’s failure to return him to work within Dr.
McKissick’s temporary restrictions. Finally, Mr. Perry requested attorney fees and a
penalty for unpaid temporary disability benefits.

        GCFL countered that Mr. Perry is not entitled to workers’ compensation benefits.
It contended he failed to meet his burden of proving an injury arising in the course of his
employment, arguing that he worked without any reported problems until after lost his
job. It suggested that, if Mr. Perry were telling the truth about the seriousness of his
injury, he would have contacted the Bureau much earlier than he actually did.

                       Findings of Fact and Conclusions of Law

       The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Mr. Perry need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief. Instead, he must come forward
with 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) (2016); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015).

                                     Compensability

         To prove a compensable injury, Mr. Perry must show that his alleged injury arose
primarily out of and in the course and scope of his employment. To do so, he must show
his injury primarily arose out of a work-related incident, or specific set of incidents,
identifiable by time and place of occurrence. Further, he must show, “to a reasonable
degree of medical certainty that it 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) (2016).

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        Applying these principles to the facts of this case, the Court first notes that, while
GCFL questioned the details of Mr. Perry’s description of the accident, it presented no
testimony or other proof to contradict his claim that he suffered a shoulder injury at work
on September 12, 2016. In fact, Mr. Phillips confirmed that Mr. Perry reported the injury
to him. Thus, there is no genuine dispute that Mr. Perry established a specific incident,
identifiable by time and place. The question to be resolved, therefore, is whether he
appears likely to prove at a hearing on the merits that his work was the primary cause of
the injury. The Court finds that Mr. Perry is likely to meet this burden.

        The only medical proof submitted regarding causation was Dr. McKissick’s
opinion that Mr. Perry’s injury was “greater than 51% due to the work-related incident.”
GCFL attacked Dr. McKissick’s opinion on the basis that the injury history Mr. Perry
gave him was untrustworthy. This attack fails for the same reason as before – GCFL
presented no actual proof that Mr. Perry’s history was inaccurate or untruthful. Absent
any evidence to the contrary, Mr. Perry appears likely to prevail at a hearing on the merits
that his workplace accident was the primary cause of his injury.

                                      Medical Benefits

       Having found Mr. Perry is likely to prevail on causation at a hearing on the merits,
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) (2016). Employers are also required
to offer a panel of physicians “from which the injured employee shall select one (1) to be
the treating physician.” See Tenn. Code Ann. § 50-6-204(a)(3)(A)(i). Although GCFL
provided a panel of physicians and set an appointment with Dr. McKissick, it denied Mr.
Perry’s claim before he could see the doctor for authorized care. GCFL must therefore
provide reasonable and necessary treatment of Mr. Perry’s compensable injury with Dr.
McKissick designated as the authorized treating physician.

         Further, GCFL’s failure to provide treatment caused Mr. Perry to incur out-of-
pocket expenses for his health insurance deductible and payment of medical bills. He
presented uncontroverted evidence during the hearing that his personal expenses totaled
$3,755.82. However, he presented no medical evidence that these expenses were
reasonable and necessary. Thus, although Mr. Perry is undoubtedly entitled to
reimbursement for some amount out-of-pocket medical expenses arising out of
reasonable and necessary treatment with Dr. McKissick, the Court cannot order payment
of these expenses at this time.




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                              Temporary Disability Benefits

        Mr. Perry also seeks payment of temporary disability benefits. An injured worker
is eligible for temporary total disability (TTD) benefits if: (1) the worker became disabled
from working due to a compensable injury; (2) there is a causal connection between the
injury and the inability to work; and (3) the worker established the duration of the period
of disability. Jones v. Crencor Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48,
at *7 (Dec. 11, 2015). None of the submitted medical records states that either of Mr.
Perry’s physicians took him completely off work. Without evidence that he was
“disabled from working,” Mr. Perry has not proven he is likely to succeed on a claim for
TTD benefits.

        The question then becomes whether Mr. Perry is entitled to temporary partial
disability (TPD) benefits. This is a category of vocational disability distinct from
temporary total disability and is available when the temporary disability is not total. See
Tenn. Code Ann. § 50-6-207(2) (2016). Specifically, “[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.,
2005 Tenn. LEXIS 1032, at *6 (Tenn. Workers’ Comp. Panel Nov. 15, 2005)). See also
Mace v. Express Services, Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 49, at *8 (Dec.
11, 2015). Thus, the injured worker may be eligible for TPD benefits in circumstances
where the treating physician has released the injured worker to return to work with
temporary restrictions and the employer fails to return the employee to work within the
restrictions. Id.

       No one disputes that Mr. Perry stopped working for GCFL even before he saw the
doctors who assigned temporary physical restrictions. However, the circumstances of
GCFL’s failure to offer light duty requires additional analysis. First, the parties were
unclear on whether Mr. Perry quit or GCFL terminated him. Mr. Perry testified that Mr.
Phillips never really said he was fired. Instead, Mr. Perry just told Mr. Phillips to “call
me if you want me to come back,” and Mr. Phillips never called. Mr. Phillips, on the
other hand, initially said Mr. Perry quit after Mr. Phillips confronted him about the stolen
cart. He later admitted he may have fired Mr. Perry or that the decision was mutual.
Similarly, he variously ascribed to both Mr. Perry and himself the statement that Mr.
Perry would have a hard time returning to the workplace. After careful review of all the
evidence, the Court concludes that, even if Mr. Phillips never actually said “you’re fired,”
his intent was to terminate Mr. Perry’s employment and not allow him to return to the
workplace.

      Absent any other considerations, this finding would normally entitle Mr. Perry to
TPD benefits. However, an employee’s termination for misconduct may relieve an
employer of the obligation to pay temporary disability benefits if the reason for
termination qualifies as misconduct under ordinary workplace rules. See Jones, supra, at

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*8-9. Noting that theft of an employer’s property is inherently a violation of ordinary
workplace rules, the Court must therefore determine whether Mr. Perry actually stole the
cart and whether GCFL fired him for that reason.

       The proof on this issue was essentially a swearing contest between Mr. Perry and
Mr. Phillips.2 Both of them provided believable explanations for everything from text
messages regarding the sale of the golf cart, the sale of a motorcycle owned by GCFL,
and a prior dispute over an allegation that Mr. Perry pocketed proceeds from a cash sale
to a GCFL customer. Both parties’ stories also had unexplained weaknesses, but none so
significant as to completely discount one version or the other. In other words, the Court
cannot credit either version without additional information. Although Mr. Perry and Mr.
Phillips both referenced potential witnesses, such as Mr. Phillips’ son or the neighbor
who sold the cart, neither of them presented affidavits or live testimony from them.

        Faced with this evidentiary stalemate, the Court notes that Mr. Perry bears the
burden of proving he is likely to prevail on this issue at a hearing on the merits. The
Court is unable to find he is likely do so at this time and must deny his request for
temporary disability benefits. This denial eliminates the need to consider Mr. Perry’s
request for a penalty based on unpaid temporary disability benefits at this time.

                                                Attorney Fees

      Mr. Perry seeks attorney fees pursuant to Tennessee Code Annotated section 50-6-
226(d)(1)(B) (2016). This section allows an award of fees and reasonable costs incurred
when an employer:

        Wrongfully denies a claim by filing a timely notice of denial, or fails to
        timely initiate any of the benefits to which the employee is entitled under
        this chapter . . . if the workers’ compensation judge makes a finding that
        such benefits were owed at an expedited hearing or compensation hearing.

The Appeals Board recently held that this provision does not require determination of fee
requests “at an interlocutory stage of the case,” although it suggested such a
determination might be appropriate in some cases. It noted that “each case must be
evaluated based on the particular circumstances presented,” although it provided no
guidance as to the circumstances that should be considered. See Andrews v. Yates
Services, LLC, 2017 TN Wrk. Comp. App. Bd. LEXIS 35, at *7-8 (May 23, 2017).

       Mr. Perry argued that the purpose of section 226(d)(1)(B) is to encourage
attorneys to accept more workers’ compensation cases and thus provide more

2
 Mr. Perry’s wife provided helpful testimony on other issues, but she did not know any of the details regarding her
husband’s termination.

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representation for injured employees. He suggested that this purpose would be frustrated
if attorneys must wait until the conclusion of a case before they can request and receive
these additional fees. While the Court agrees with the general substance of this
argument, it notes that he presented no evidence of why the “particular circumstances” of
this case would qualify for an immediate award of fees under Andrews. Further, the
somewhat unsettled issues of credibility in this case suggest it would not be an ideal
example of facts supporting this type of interlocutory award. Based on these
considerations, the Court must deny Mr. Perry’s request for fees at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Golf Carts Fore Less shall provide Mr. Perry with medical treatment made
      reasonably necessary by his September 12, 2016 injury in accordance with
      Tennessee Code Annotated section 50-6-204. The Court designates Dr.
      McKissick as the authorized treating physician.

   2. Mr. Perry’s requests for temporary disability benefits, the twenty-five percent
      penalty, and attorney fees are denied at this time.

   3. This matter is set for a Scheduling Hearing on November 28, 2017, at 9:00 a.m.
      You must call 615-741-2112 or toll free at 855-874-0473 to participate. Failure to
      call in may result in a determination of the issues without your further
      participation. All conferences are set using Central Time (CT).

   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) (2016). 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 may result in a
      penalty assessment for non-compliance.

   5. For questions regarding compliance, please contact the Workers’ Compensation
      Compliance Unit via email WCCompliance.Program@tn.gov.


      ENTERED this the 16th day of August, 2017.




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                                 _____________________________________
                                 Judge Dale Tipps
                                 Court of Workers’ Compensation Claims


                                     APPENDIX

Exhibits:
   1. Agreed Exhibit List
   2. Supplement to Agreed Exhibit List
   3. Affidavit of Lonnie Perry
   4. First Report of Injury
   5. Notice of Denial
   6. Choice of Physician form signed November 14, 2016
   7. Unsigned Choice of Physician Form
   8. March 20, 2017 letter from GCFL counsel to Bureau
   9. Affidavit of Steven Waldron
   10. Copies of paychecks
   11. Photographs of texts from Mr. Phillips to Mr. Perry
   12. Anthem deductible printout
   13. Anthem Claim Recap
   14. Cardinal Health Transaction Details
   15. Anthem Explanation of Benefits

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




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                             CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order was
 sent to the following recipients by the following methods of service on this the 16th day
 of August, 2017.

Name               Certified Mail Email          Email Address

R. Steven                            x           arlenesmith@comcast.net
Waldron

Gordon Aulgur                        x           Gordon.aulgur@accidentfund.com




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




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