                                                                                                     FILED
                                                                                                   Jun 05, 2018
                                                                                                  02:38 PM(CT)
                                                                                               TENNESSEE COURT OF
                                                                                              WORKERS' COMPENSATION
                                                                                                     CLAIMS




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

ROBIN PICCIOTTO,                                            )   Docket No. 2016-08-1199
         Employee,                                          )
v.                                                          )
SUNNY MEADOWS FOUNDATION                                    )   State File No. 56767-2016
SAFE HAVEN FOR PETS,                                        )
         Employer,                                          )
and                                                         )
STATE AUTOMOBILE MUTUAL                                     )   Judge Amber E. Luttrell
INSURANCE CO.,                                              )
         Carrier.                                           )


                             EXPEDITED HEARING ORDER
                       DENYING TEMPORARY DISABILITY BENEFITS


       This matter came before the Court on May 17, 2018, for an Expedited Hearing on
Ms. Picciotto’s request for temporary disability benefits. The legal issue is whether Ms.
Picciotto is likely to prevail at a hearing on the merits in establishing entitlement to these
benefits. For the reasons set forth below, the Court holds Ms. Picciotto did not come
forward with sufficient evidence to establish a likelihood of prevailing at a hearing on the
merits and denies her request.

                                             History of Claim 1

        Ms. Picciotto worked for Sunny Meadows Foundation Safe Haven for Pets. On
June 29, 2016, she stumbled and injured her right knee while walking a dog. Ms.
Picciotto experienced immediate pain; however, she continued working. Her pain
progressed over several days and she reported her injury. Sunny Meadows authorized an
initial appointment at Baptist Urgent Care and then provided a panel from which Ms.
Picciotto selected Dr. John Lochemes.


1
    The hearing testimony and exhibits established the facts set forth in the History of Claim section.
                                                        1
                                                Medical Treatment

        Ms. Picciotto saw Dr. Lochemes on five occasions from August to October 2016,
for what he diagnosed as a traumatic meniscus tear of the right knee. Dr. Lochemes
treated Ms. Picciotto conservatively and assigned light duty restrictions of ten pounds
continuous lifting, twenty-five pounds intermittent lifting, and no climbing, kneeling,
bending, or stooping. Sunny Meadows could not accommodate those restrictions so it
initiated temporary partial disability payments in August. 2 Throughout his treatment of
her, Dr. Lochemes ordered an MRI of the knee that was repeatedly denied by Sunny
Meadows.

      Ms. Picciotto last saw Dr. Lochemes on October 18, 2016, because he left
Memphis Orthopedic Group. At this visit, Dr. Lochemes again ordered an MRI and
maintained light duty restrictions.

       Sunny Meadows subsequently approved the knee MRI and provided Ms. Picciotto
a new panel of orthopedic specialists from which she selected Dr. Anthony Mascioli. In
April 2017, Dr. Mascioli noted the MRI confirmed a meniscus tear, and he recommended
surgery.

       Ms. Picciotto was unable to undergo knee surgery due to an unrelated eye
condition diagnosed in the spring of 2017. 3 After extensive testing, she sought treatment
from Dr. Kendrick Henderson, a neurologist, for a diagnosis of papilledema associated
with increased intracranial pressure. During treatment for her unrelated condition, Dr.
Henderson recommended Ms. Picciotto undergo a lumbar puncture before undergoing
elective knee surgery with general anesthesia. Dr. Mascioli agreed and stated in a letter
dated August 7, 2017, “I am aware of and agree that the knee surgery will need to be
placed on hold until her neurology issues have been taken care of. Once she is cleared,
we will be happy to get her on the surgery schedule for her knee injury.” She last saw Dr.
Mascioli on December 19, 2017 when he again deferred knee surgery until Ms.
Picciotto’s neurological issues were resolved. Dr. Mascioli’s records made no mention of
her work status.

        Because Ms. Picciotto could not proceed with knee surgery due to her unrelated
condition Sunny Meadows suspended temporary disability payments awaiting Ms.
Picciotto’s resumption of treatment for the knee injury.



2
    The parties stipulated that Ms. Picciotto's compensation rate is $200.07 per week.
3
 The parties introduced and the Court reviewed numerous medical records concerning Ms. Picciotto’s
unrelated neurological condition from Church Health Center, Neurology Clinic, and Southern College of
Optometry. Because the treatment details for that condition are irrelevant to the issue in this case, the
Court did not address them in this order.
                                                            2
                                         Hearing Testimony

       Ms. Picciotto testified she has not returned to Dr. Mascioli for her knee injury
since December 2017, but acknowledged she could because she remains under his care.
She continues to see Dr. Henderson every three months for her neurological condition.
Ms. Picciotto stated Dr. Henderson has no timeline or definite end date for her
neurological/eye treatment and she agreed it is possible she may never have knee surgery.

       Ms. Picciotto testified she has not worked since July 22, 2016. She stated that Dr.
Mascioli has not released her at maximum medical improvement and told her to remain
off work. 4 Ms. Picciotto does not think her eye condition prevents her from working, but
“absolutely” believes her right knee prevents her from working. She requested back
temporary disability from May 18, 2017 to present and ongoing temporary disability until
such time she is able to resume treatment for her knee and reach maximum medical
improvement from that treatment.

                           Findings of Fact and Conclusions of Law

      Ms. Picciotto need not prove every element of her claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, she must present sufficient
evidence that she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. §
50-6-239(d)(1) (2017).

        At the hearing, the parties submitted the issue in this case is whether Ms. Picciotto
is entitled to temporary disability benefits when her treatment for the work injury was
suspended indefinitely due to an unrelated medical condition. Ms. Picciotto argued Dr.
Mascioli took her off work or restricted her from work until Dr. Henderson clears her to
resume medical treatment and undergo knee surgery. She contended no exception exists
to terminate temporary disability when an unrelated condition causes the suspension of
medical treatment. Sunny Meadows argued Ms. Picciotto is not entitled to temporary
disability benefits when her knee treatment was suspended for an indefinite period of
time due to unrelated medical issues. It contended that to date, approximately one year
later, Ms. Picciotto still has not resumed treatment for her knee injury and may never be
able to proceed with the approved knee surgery due to her unrelated issue. Under these
facts, Sunny Meadows asserted it would be unjust to indefinitely obligate it to continue
temporary disability benefits.

        Upon consideration of the evidence, the Court finds it need not address the issue
4
  Ms. Picciotto provided somewhat different testimony regarding Dr. Mascioli’s instructions regarding
work. She testified on direct examination that Dr. Mascioli “told her to stay off work,” but subsequently
stated, “The parameters he said- they could not accommodate.” The Court understood Ms. Picciotto to say
that Dr. Mascioli gave her restrictions Sunny Meadow could not accommodate. This variance does not
affect the outcome of the Court’s holding.
                                                   3
raised by the parties at this time as Ms. Picciotto did not come forward with sufficient
medical proof to satisfy the requirements for entitlement to temporary total or temporary
partial disability benefits. An injured worker is eligible for temporary disability benefits
if (1) the worker became disabled 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. James v. Landair Transp., Inc., 2015 TN Wrk.
Comp. App. Bd. LEXIS 28, at *16 (Aug. 26, 2015). Temporary partial disability benefits
may be awarded when the temporary disability resulting from a work-related injury is not
total, and such entitlement exists for 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).

       Here, the only medical evidence addressing Ms. Pisciotto’s work status were Dr.
Lochomes’ records, which indicated he last assigned restrictions on October 18, 2016.
Ms. Pisciotto testified Dr. Mascioli took her off work or provided work restrictions
Sunny Meadows could not accommodate; however, Dr. Mascioli’s records made no
mention of Ms. Pisciotto’s work status or any restrictions. Without medical proof of Ms.
Picciotto’s alleged total or partial disability resulting from work and the duration of that
disability, the Court is unable to hold that she would prevail at a hearing on the merits on
her claim for temporary disability benefits.

IT IS THEREFORE ORDERED AS FOLLOWS:

   1. Ms. Picciotto’s claim against Sunny Meadows Foundation Safe Haven for Pets
      and its workers’ compensation carrier for the requested temporary disability
      benefits is denied at this time.

   2. This matter is set for a telephonic Status Hearing on July 16, 2018, at 10:00
      a.m. Central Time. You must call toll-free 855-543-5039 to participate in the
      hearing.

       ENTERED this the 5th day of June, 2018.



                                          _____________________________________
                                          Judge Amber E. Luttrell
                                          Court of Workers’ Compensation Claims




                                             4
                                      APPENDIX

Exhibits:
   1. Employee’s Medical Records (collective exhibit)
   2. Employer’s Medical Records (collective exhibit)
   3. Ms. Pisciotto’s Affidavit
   4. Emails
   5. Emails

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Employer’s Response to Employee’s Request for Expedited Hearing
   5. Employer’s Memorandum of Law
   6. Order Denying Request for Decision on the Record and Setting Case for
      Evidentiary Hearing
   7. Joint Motion for Continuance
   8. Order Granting Joint Motion for Continuance
   9. Employer’s Response to Expedited Hearing Request


                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 5th day of
June, 2018.

                Name                          Via Email          Service sent to:
James Blount, Employee’s Attorney                 X        jimmy@blountfirm.com
Scott McCullough, Employer’s Attorney             X        smccullough@mbb-law.com


                                          __
                                          _____________________________________
                                           ________________________
                                          Peenny Sh
                                          Penny    hrum, C
                                                 Shrum,    lerk
                                                         Clerk
                                          Court off W
                                                    Workers’  Compensation Claims
                                                      orkers’ Compens




                                            5
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements should include: (1) a
      statement summarizing the facts of the case from the evidence admitted during the
      expedited hearing; (2) a statement summarizing the disposition of the case as a result of
      the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
      argument, citing appropriate statutes, case law, or other authority.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
  Filed Date Stamp Here                     EXPEDITED HEARING NOTICE OF APPEAL                        Docket #: _______________________
                                                 Tennessee Division of Workers’ Compensation
                                                     www.tn.gov/labor-wfd/wcomp.shtml                 State File #/YR: __________________
                                                            wc.courtclerk@tn.gov
                                                               1-800-332-2667                         RFA #: __________________________
                                                                                                      Date of Injury: ___________________
                                                                                                      SSN: ___________________________




                   Employee


                   Employer and Carrier
          Notice
          Notice is given that
                                   [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers’ Compensation Claims at ______

                                                                 to the Workers’ Compensation Appeals Board.
           [List the date(s) the order(s) was filed in the court clerk’s office]

          Judge

          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal:




          Additional Information
          Type of Case [Check the most appropriate item]

                           ☐ Temporary disability benefits
                           ☐ Medical benefits for current injury
                           ☐ Medical benefits under prior order issued by the Court
          List of Parties
          Appellant (Requesting Party):                          ___At Hearing: ☐Employer ☐Employee
          Address:
          Party’s Phone:                                                     Email:
          Attorney’s Name:                                                                       BPR#:
          Attorney’s Address:                                                                            Phone:
          Attorney’s City, State & Zip code:
          Attorney’s Email:
                                       * Attach an additional sheet for each additional Appellant *

LB-1099     rev.4/15                                      Page 1 of 2                                                          RDA 11082
Employee Name: ____________________________________   SF#: ________________________________ DOI: __________________




Appellee(s)
Appellee (Opposing Party):____________________At Hearing: ☐Employer ☐Employee


Appellee’s Address:                                                                              ____
Appellee’s Phone:                                                   Email:                                ____
Attorney’s Name:                                                                     BPR#:                            _
Attorney’s Address:                                                                   Phone:                          _
Attorney’s City, State & Zip code: __________________                                        _________       ______
Attorney’s Email:                                                                                                     _
                         * Attach an additional sheet for each additional Appellee *



CERTIFICATE OF SERVICE

I,                                            , certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers’ Compensation Appeals on this the          ___day of       , 20__.



[Signature of appellant or attorney for appellant]



LB-1099   rev.4/15                                    Page 2 of 2                                   RDA 11082
                               Tennessee Bureau of Workers’ Compensation
                                      220 French Landing Drive, I-B
                                        Nashville, TN 37243-1002
                                              800-332-2667

                                          AFFIDAVIT OF INDIGENCY

I, ________________________________________, having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.

1. Full Name:                                            2. Address:

3. Telephone Number:                                     4. Date of Birth:

5. Names and Ages of All Dependents:

        ______________________________________ Relationship:

        ______________________________________ Relationship:

        ______________________________________ Relationship:

        ______________________________________ Relationship:

6. I am employed by:

        My employer’s address is:

        My employer’s phone number is:

7. My present monthly household income, after federal income and social security taxes are deducted, is:

$ ___________________

8. I receive or expect to receive money from the following sources:

        AFDC            $ ________ per month             beginning
        SSI             $ ________ per month             beginning
        Retirement      $ ________ per month             beginning
        Disability      $ ________ per month             beginning
        Unemployment $ ________ per month                beginning
        Worker’s Comp.$ ________ per month               beginning
        Other           $ ________ per month             beginning



LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are:

        Rent/House Payment $ ________ per month          Medical/Dental $ ___________ per month

        Groceries       $ ________ per month             Telephone       $            per month
        Electricity     $ ________ per month             School Supplies $            per month
        Water           $ ________ per month             Clothing        $            per month
        Gas             $ ________ per month             Child Care      $            per month
        Transportation $ ________ per month              Child Support   $            per month
        Car             $_________ per month
        Other           $ _______ per month (describe:                                      )


10. Assets:

        Automobile              $                        (FMV)
        Checking/Savings Acct. $
        House                   $                        (FMV)
        Other                   $                        Describe:

11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.



                                                                         _

APPELLANT



Sworn and subscribed before me, a notary public, this

_______ day of                                    , 20_______.



NOTARY PUBLIC

My Commission Expires:




LB-1108 (REV 11/15)                                                                             RDA 11082
