                                                                                           FILED
                                                                                        May 25, 2016
                                                                                          TENNESSEE
                                                                                     WORKERS' COMPENSATION
                                                                                        APPEALS BOARD

                                                                                         Time: 1 :55 P.M.



             TENNESSEE BUREAU OF WORKERS' COMPENSATION
                WORKERS' COMPENSATION APPEALS BOARD


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


                         Affirmed as Modified-May 25, 2016


In this interlocutory appeal, the employee alleges that he injured his neck at a job site
when he attempted to lift a shopping cart partially filled with construction materials, lost
his balance, and fell backward. The employer provided a panel of physicians several
weeks after the alleged injury but declined to schedule an appointment, denying the claim
instead. Following an expedited hearing, the trial court ordered the employer to provide
medical benefits and to pay certain medical expenses already incurred, but denied the
employee's claim for temporary disability benefits. Both parties appealed. Having
carefully reviewed the record, we affirm the trial court's determination as modified.

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

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

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




                                             1
                                Factual and Procedural Background

        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 co-worker, 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 returned to 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 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.



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
       Employee returned to work, but on May 19 he allegedly aggravated his condition
                                                                                   3
while pulling 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 cervical
radiculopathies. 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. Following the issuance of a Dispute Certification Notice, Employee filed a
Request for an Expedited Hearing 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. Both parties timely appealed.

                                    Standard of Review

       The standard of review to be applied by this Board 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' compensationjudge:

       (A)    Violate constitutional or statutory provisions;

3
 Employee testified he received no income from May 19, 2015, to February 2, 2016, when he began
working for Miller Electric.

                                               3
        (B)     Exceed the statutory authority of the workers' compensation judge;
        (C)     Do not comply with lawful procedure;
        (D)     Are arbitrary, capricious, characterized by abuse of discretion, or
                clearly an unwarranted exercise of discretion;
        (E)     Are not supported by evidence that is both substantial and material
                in the light of the entire record."

Tenn. Code Ann. § 50-6-2 l 7(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

                                       The Physical Facts Rule

       On appeal, Employer argues that Employee's testimony should be disregarded
pursuant to the "physical facts rule," which provides that a court may decline to consider
testimony that "cannot possibly be true, is inherently unbelievable, or is opposed to
natural laws." State v. Hornsby, 858 S.W.2d 892, 894 (Tenn. 1993) (citation omitted).
Specifically, Employer cites three reasons why Employee's testimony is incompatible
with the laws of nature.

        Employer's first argument is a conclusory assertion: "it is physically impossible to
lift a shopping cart containing 40-60 lbs. to chest level while standing at the rear of the
cart." The record indicates that Employee is a forty-year-old former Marine and a regular
weight-lifter. Employer offered no evidence that such a person is physically incapable of
performing such a feat. Moreover, Employer asks us to apply a rule historically invoked
only "sparingly," Hornsby, 858 S.W.2d at 895, based on a conclusory statement that, in
Employer 's opinion, Employee could not have been strong enougb to lift a shopping cart
                                                           4
of unkn wn weight while positi ned at the rear of the cart. This we decline to do.

       Second, Employer argues that, even if Employee could lift the shopping cart
perpendicularly to his chest, when the child seat collapsed on his hands, the "natural
instinct" would be to drop the cart while it was still suspended in the air "in the opposite
direction." However, Employer neglects to acknowledge Employee's testimony that he
lost control of the cart due to a combination of the collapsing of the child seat on his
hands and tripping over uneven pavement beneath him. In other words, the stumbling
over uneven pavement, falling backward, and the collapsing of the child seat occurred
simultaneously. Thus, we cannot conclude whether it was "palpably improbable" for

4
  Employer did bring a Kroger shopping cart to the expedited hearing as a "demonstrative exhibit," but
introduced no objective evidence regarding the size or weight of the cart that allegedly injured Employee,
nor did Employer submit evidence of the relative strength of Employee.
                                                    4
Employee to hold on to the cart as he was falling backward. See Nelms v. Tenn. Farmers
Mut. Ins. Co., 613 S.W.2d 481, 483 (Tenn. Ct. App. 1978).

       Similarly, Employer's third argument, that because Employee only raised the cart
to chest level, "it would simply defy the laws of gravity for any part of the cart to ever hit
the 'top' of Mr. Young's head," also fails. There is no evidence that it violates a "law of
nature" for an unwieldy, heavy object to strike a person's head as the person is falling
down while grasping the heavy weight at or near chest level.

        In sum, "[ o]nly when the testimony is inherently improbable and impossible of
belief should courts intervene to declare it incredible as a matter of law. When the
testimony is capable of different interpretations, the matter should be left for the [fact
finder] to decide as the sole arbiter of credibility." Hornsby, 858 S.W.2d at 895 (citations
omitted). Here, Employee's testimony about the nature of his fall, when considered in its
totality, cannot be deemed incredible as a matter of law. Furthermore, the trial judge's
findings of fact are presumed correct, unless the preponderance of the evidence is
otherwise. Tenn. Code Ann. § 50-6-239(c)(7). Under these circumstances, we cannot
conclude that the evidence preponderates against the determination of the trial court on
this issue.

                                  Impeachment Evidence

        Employer next argues that the trial court accorded insufficient weight to its efforts
to impeach Employee's credibility in two respects: his prior neck condition and his
previous arrest record. In Harrell v. ·Travelers Insurance Co., No. 02SO 1-9108-CH
00033, 1992 Tenn. LEXIS 459 (Tenn. June 22, 1992), the Tennessee Supreme Court
addressed a similar issue regarding impeachment. The employee in Harrell denied any
prior injuries and denied working as a carpenter after the work accident. Id. at *4.
However, evidence indicated the employee had been in a motor vehicle accident several
days before the work accident and had been employed intermittently as a carpenter after
the work accident. Id. Although the trial court reached the conclusion that the
employee's testimony had been successfully impeached, the Supreme Court reversed this
finding. Id. at *6. With respect to the employee's admission that he had been involved in
a motor vehicle accident several days before the work accident, the Supreme Court noted
that involvement in a motor vehicle accident does not equate to evidence of a prior injury
and did not impeach the employee's credibility. Id. at *5. Moreover, the employee's
denial of current employment as a carpenter was not necessarily inconsistent with the
employee's testimony that he did "odds and ends jobs" as a carpenter after the work
accident. Id. at *5-6. Consequently, the Supreme Court reversed the credibility finding
and remanded the case "for further development of the proof." Id. at *6.

       In the present case, Employee was asked during his deposition whether he ever
suffered "neck pain before this to where you've had to seek medical treatment," and

                                             5
Employee answered "no." He was then asked whether he had any "injuries relative to
your neck," and he again answered "no." Employer cited as the basis for impeachment a
2014 altercation in which Employee was "punched in the face" and "knocked out." He
was treated at an emergency room and placed in a cervical collar. A CT scan of the neck
revealed degenerative changes in the cervical spine but no evidence of a disc herniation
or other acute cervical spine injury. Thus, although Employee was diagnosed with neck
pain following the altercation, he was not diagnosed with an acute cervical spine injury
caused by the altercation. Moreover, there is no evidence that Employee sought medical
treatment following the altercation due to neck pain, as Employer had asked during
Employee's deposition. Therefore, we cannot conclude that Employee's deposition
testimony was necessarily inconsistent with his testimony at the expedited hearing.

        Further, when confronted with these facts during the expedited hearing, Employee
testified that he had forgotten about that incident, but acknowledged that it occurred.
Employee then stated that he had removed the cervical collar immediately upon leaving
the emergency room, had experienced no residual problems with his neck after the
emergency room visit, and had sought no other treatment for neck problems after the
emergency room visit. No evidence was introduced at the expedited hearing suggesting
that Employee suffered an acute cervical spine injury as a result of the altercation or that
he continued to exhibit symptoms or sought additional medical treatment related to his
neck. Under these circumstances, we cannot conclude that the evidence preponderates
against the trial court' s determination on this issue.

        With respect to his previous arrest record, Employee readily acknowledged prior
arrests during his deposition. The fact that he neglected to identify a third misdemeanor
arrest until his cross-examination at the expedited hearing raises a reasonable question
regarding Employee's credibility, especially when considering that the third arrest
occurred close in time prior to his deposition. When confronted with this omission at the
expedited hearing, however, Employee acknowledged it had occurred and testified that
he thought he had identified this arrest in his deposition. We cannot conclude that this,
standing alone, effectively rendered Employee's testimony regarding the alleged work
accident unreliable.

       The trial court found that Employee was "self-assured, steady, confident,
forthcoming, reasonable and honest" and that his testimony was credible. The law is
clear that "[w]hen the trial court has heard in-court testimony, considerable deference
must be afforded in reviewing the trial court's findings of credibility and assessment of
the weight to be given to that testimony." Tryon v. Saturn Corp., 254 S.W.3d 321, 327
(Tenn. 2008). Thus, although Employee's deposition testimony could be considered
incomplete or arguably inconsistent regarding both his previous arrest record and his
prior neck pain, we cannot conclude that the trial court erred in finding Employee's
testimony at the expedited hearing to be credible and reliable.


                                             6
                          Burden of Proof at Expedited Hearing

        Next, Employer argues that Employee failed to meet his burden of proof at the
expedited hearing to support the trial court's award of medical benefits. Specifically,
Employer cites Tennessee Code Annotated section 50-6-217(a)(3) in support of its
argument that Employee failed to come forward with "evidence that is both substantial
and material" in support of his claim. Yet, as we have made clear in previous cases, an
employee's burden of proof at an expedited hearing is not the same as the burden at a
compensation hearing. 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).

       In the present case, Employer presented no evidence to refute Employee's
testimony as to how the work accident occurred. Moreover, Employee testified that he
informed his supervisor of the accident the following day. The supervisor's testimony
that no such conversation occurred because he did not recall it and had not noted it in his
daily log was deemed by the trial court to be less persuasive than Employee's testimony.
Considering the record as a whole, we cannot conclude the trial court erred in finding
Employee was involved in a work-related accident on May 11, 2015, and that he reported
the accident to his supervisor the following day.

                           Reimbursement of Medical Expenses

       In light of the foregoing, it is necessary to address both Employer's contention that
the trial court should not have awarded medical benefits, as well as Employee's
contention that the trial court should have ordered payment of more medical expenses. It
is well-settled that an employer is legally obligated to provide to an injured employee
reasonable and necessary medical treatment that is causally-related to the work accident.
See Tenn. Code Ann. § 50-6-204(a)(l)(A) (2015). In circumstances where an employer
refuses to provide medical treatment and/or denies the employee's claim, such employer
bears the risk of being held responsible for medical expenses incurred by the employee in
the event the claim is deemed compensable. See, e.g., GAF Bldg. Materials v. George,
47 S.W.3d 430, 433 (Tenn. Workers' Comp. Panel 2001); McCord, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *13 ("[A]n employer who elects to deny a claim runs the

                                             7
risk that it will be held responsible for medical benefits obtained from a medical provider
of the employee's choice .... ").

       In the present case, it was disputed whether Employee informed his supervisor of
the accident on May 12, 2015. Moreover, the medical reports of May 12, May 15, and
May 18 do not mention any alleged work accident. Yet, both parties admit that Employer
became aware of the alleged accident no later than May 20, 2015. It is further undisputed
that Employer did not provide a panel on May 20 and, even after giving a panel, declined
to authorize an appointment with the selected physician. Thus, we have no difficulty
concluding that Employee is entitled to reimbursement of all related medical expenses
incurred on or after May 20, 2015, not just those related to Dr. Lanford's evaluation. As
to medical expenses associated with Employee's initial three dates of treatment (May 12
and 15 with Dr. White, May 18 with Dr. Schrock), there was insufficient proof at the
expedited hearing to establish those visits were causally-related to the work accident.
Therefore, the trial court's order is modified to order reimbursement of all causally-
related medical expenses incurred on or after May 20, 2015.

                                       On-going Medical Treatment

       Employee next appeals the decision of the trial court directing Employer to
authorize treatment with the physician selected from the panel, Dr. Singh, and instead
seeks to compel Employer to authorize continuing treatment with Dr. Lanford. We agree
with Employee. "An employer who denies liability for a compensable injury is in no
position to insist upon the statutory provisions respecting the choosing of physicians."
GAF Bldg. Materials, 47 S.W.3d at 433.

        In the present case, the trial court expressly held that Employer "waited too long to
provide Mr. Young a panel." It is undisputed that Employer became aware of the alleged
work accident by at least May 20, 2015. Even assuming Employer took fifteen days to
investigate and make a decision on compensability, a panel should have been offered or a
denial filed no later than June 4. 5 See Tenn. Comp. R. & Regs. 0800-02-14-.04(7)
( 1999). The Choice of Physician form was not signed until June 27, by which time
Employee had sought treatment on his own, having seen Dr. Lanford on June 9.
Therefore, we conclude Employee justifiably sought treatment on his own and is entitled
to continue treating with Dr. Lanford as his authorized physician. The order of the trial
court is modified accordingly.

                                      Temporary Disability Benefits

       Finally, Employee challenges the trial court's denial of temporary disability
benefits. Employee alleges he was unable to work from May 20, 2015, through February

5
    The record is silent as to the date Employer denied the claim or the date it provided Employee the panel.

                                                       8
2, 2016, and, thus, is entitled to temporary disability benefits. 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). Where the disability is not total, an employee may recover
temporary partial disability benefits if the 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 continued 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).

        Here, 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
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.
Therefore, we affirm the trial court's denial of temporary disability benefits at this time.

                                        Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court's decision to order medical benefits at this interlocutory stage of the case.
To the extent that the trial court's order limited reimbursable medical expenses to those
of Dr. Lanford, and required Employee to obtain additional treatment with Dr. Singh, we
modify the order to require payment or reimbursement of all causally-related medical
expenses on or after May 20, 2015, and order Employer to authorize Dr. Lanford for any
additional reasonable and necessary medical treatment causally-related to the work
accident. Lastly, we affirm the trial court's denial of temporary disability benefits. The
case is remanded for any further proceedings that may be necessary.



                                                            W. Conner, Judge
                                                          s' Compensation Appeals Board



                                             9
                       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 25th day of May, 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
