                                                                                                               F~ED

                                                                                                              July 6 , 2016

                                                                                                          1N COURT OF
                                                                                                      WORKERS' CO!\IPENSATION
                                                                                                             CLAIMS

                                                                                                               TilDe 2: 50 Pl\1


               TENNESSEE BUREAU OF WORKERS' COMPENSATION
              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT KNOXVILLE

GERALD SPENCER,                                             )   Docket No.: 2015-03-0899
         Employee,                                          )
v.                                                         )    State File Number: 100267-2015
NATIONAL STATE PARK                                        )
CONCESSION d/b/a CADES COVE                                )    Judge Lisa Lowe Knott
RIDING STABLE,                                             )
         Employer,                                         )
and                                                        )
LIBERTY MUTUAL INSURANCE                                   )
COMPANY,                                                   )
         Carrier.                                          )


                     EXPEDITED HEARING ORDER DENYING
                 TEMPORARY DISABILITY AND MEDICAL BENEFITS


       This matter came before the undersigned workers' compensation judge on June
28, 2016, on the Request for Expedited Hearing filed by the employee, Gerald Spencer,
pursuant to Tennessee Code Annotated section 50-6-239 (20 15). The central legal issues
are: (1) whether Mr. Spencer sustained an injury to his right knee and/or his right
hip/back arising primarily out of and in the course and scope of his employment with the
Employer, National State Park Concession d/b/a Cades Cove Riding Stables; (2) the date
of and notice of alleged injuries; and (3) whether Mr. Spencer is entitled to medical and
temporary disability benefits. For the reasons set forth below, the Court finds that Mr.
Spencer's request for medical and temporary disability benefits related to his right knee
injury is denied and his request for medical treatment related to his right
hip/back/my fascial pain is granted, but his request for temporary disability benefits for
same is denied. 1




1
  A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

                                                          1
                                               History of Claim

          Mr. Spencer is a forty-seven-year-old resident of Knox County, Tennessee.
    National State Park Concession d/b/a Cades Cove Riding Stables (CCRS) employed Mr.
    Spencer initially as a cashier and then later as a horse wrangler. Mr. Spencer held
    seasonal positions with CCRS from 2012 through 2015. CCRS currently lists Mr.
    Spencer as an inactive employee. His last date as an active employee was August 17,
    2015.

        Mr. Spencer acknowledges pre-existing bi-lateral knee conditions. He previously
obtained diagnostic testing and injections in both knees. Dr. Edwin Holt, Ortho
Tennessee, performed right knee surgery on May 15, 2015. Due to the physical aspect of
Mr. Spencer's job duties, Dr. Holt did not release him to return to work without
restrictions until July 1, 2015. (Ex. 8.)

       Mr. Spencer alleged that on August 1, 2015, he was removing the saddle from his
assigned horse, when a co-worker named Nick Coppenger let his horse loose in the barn.
This action spooked Mr. Spencer's horse, which threw him against a wall and knocked
him to the gr und. Mr. Spencer alleged he sustained injuries to his right kne and hip. 2
Mr. Ronald Lee, General Manager of CCRS, stated in his affidavit that he did not receive
written or oral notification of the injury from Mr. Spencer. CCRS disputed that the
alleged incident occurred on August 1, 2015, as records reflect Mr. Spencer and Mr.
Coppenger last worked together in July 2015.

       Mr. Spencer filed a Petition for Benefit Determination (PBD) seeking temporary
disability and medical benefits. The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice (DCN). Mr.
Spencer filed a Request for Expedited Hearing.

       At the Expedited Hearing, Mr. Spencer did not dispute his pre-existing right knee
condition. Mr. Spencer claimed he spoke with Mr. Lee about his prior right knee
surgery; that he did six weeks of physical therapy; and Dr. Holt released him to return to
work with no restrictions on July 1, 2015. Mr. Spencer testified he knew the alleged
incident at work occurred on a Sunday. He was not sure of the exact date but believed it
to be August 1 or August 2, 2015.

       Mr. Spencer testified he reported the injury to his managing supervisor, Edward
Kirkland, on the day it happened. At the Expedited Hearing, Mr. Kirkland testified he
was present in the tacking room when the incident occurred. He "heard a ruckus" and
saw a horse go running through the hallway where Mr. Spencer was working. Mr.

2
  In his closing argument, Mr. Spencer referenced additional injuries to his foot and ankle. However, his PBD only
referenced right knee and hip injuries.

                                                         2
Kirkland testified he entered the stall area and saw Mr. Spencer on the ground. He
helped Mr. Spencer get up. Mr. Kirkland stated Mr. Spencer said at that time he was not
feeling well. Mr. Kirkland did not remember the exact date of the incident. Mr. Kirkland
testified that after Mr. Spencer's right knee surgery, he returned to work and was doing a
good job, but after this incident, Mr. Spencer was limping or "walking funny" and having
difficulties doing his job.

       Mr. Spencer testified he attempted to return to Dr. Holt but was unable to schedule
an appointment because he owed Dr. Holt money for past treatment. He underwent an
MRI at the VA hospital, which revealed a small meniscal tear. (Ex. 11.) CCRS
ultimately authorized Dr. John Harrison to evaluate Mr. Spencer's right knee and right
hip. (Ex. 14.)

       CCRS countered that: Mr. Spencer did not give proper written notice of his
alleged injury; the injury did not occur on August 1, 2015; and there is no medical proof
establishing Mr. Spencer's right knee injury arose primarily out of and in the course and
scope of his employment.

                        Findings of Fact and Conclusions of Law

        Because this case is in a posture of an Expedited Hearing, Mr. Spencer need not
prove every element of his claim by a preponderance of the evidence in order to obtain
relief at an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-
0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App.
Bd. Mar. 27, 2015). Instead, he must come forward with sufficient evidence from which
the court can determine that he is likely to prevail at a hearing on the merits. !d.; Tenn.
Code Ann. § 50-6-239(d)(1) (2015).

       To be compensable under Workers' Compensation Law, an injury must arise
primarily out of and occur in the course and scope of the employment. Tenn. Code Ann.
§ 50-6-102(14) (2015). The term "injury" is defined as "an injury by accident ... arising
primarily out of and in the course and scope of employment, that causes death,
disablement or the need for medical treatment of the employee." !d. For an injury to be
accidental, it must be "caused by a specific incident, or set of incidents, arising primarily
out of and in the course and scope of employment, and is identifiable by time and place
of occurrence." Tenn. Code Ann.§ 50-6-102(14)(A) (2015).

                               Date of and Notice ofInjury

       Mr. Spencer testified the injury occurred on a Sunday but could not recall the
exact date. He explained with specificity that he was removing the saddle from his
assigned horse when Mr. Coppenger spooked his horse. His horse threw him against a
wall and he fell. There is a dispute as to the exact date of injury, since Mr. Spencer

                                             3
alleged it occurred on August 1, 2015, and Mr. Lee testified Mr. Spencer and Mr.
Coppenger last work together in July 2015. Under Tennessee Code Annotated section
50-6-201(a)(l) (2015), an injured employee shall give written notice of the injury to an
employer who has no actual notice. Regardless of whether the incident occurred in July
or August 2015, Mr. Kirkland's testimony established he was Mr. Spencer's managing
supervisor at the time of the incident and he had actual knowledge of the incident on the
day it occurred. CCRS's actual knowledge of the incident relieved Mr. Spencer of the
obligation to provide written notice.

                                        Causation

        An injury "arises primarily out of and in the course and scope of employment only
if it has been shown by a preponderance of the evidence that the employment contributed
more than fifty percent (50%) in causing the injury, considering all causes." Tenn. Code
Ann. § 50-6-102(14)(B) (2015).

       CCRS authorized Dr. John Harrison to evaluate Mr. Spencer's alleged right knee
and hip injuries. Regarding Mr. Spencer's knee injury, Dr. Harrison stated, "Based on
today's assessment, I cannot state with any medical certainty that [Mr. Spencer's] alleged
work injury of 8/01/2015 contributed to more than 50% of [his] ongoing knee problems.
Review of prior medical records indicates that this patient's knee problems have been
longstanding and preceded his alleged work injury." (Ex. 14.)

       Regarding Mr. Spencer's hip injury, Dr. Harrison stated the following:

      He is advised that his accident did not cause any significant hip pathology.
      It is likely to persist. His ongoing symptoms in my opinion maybe more
      related to a gluteal contusion or some underlying back problem. The
      patient is reassured that he will require no surgery on his hip. The patient
      reports that he is done with trail riding and does not wish to risk trying to
      get back into this. It is my opinion that the patient's current complaints do
      not appear to be related in any way to any type of significant hip pathology.
      His current complaints are more myofascial in nature. In the absence of
      any history of such complaints prior to his accident and assuming his
      history to be truthful and accurate, I would conclude that his current
      myofascial complaints are likely than not to be related to his work injury of
      August 1, 2015. The patient on repeat questioning states he had had no
      prior problems with pain in the gluteal area or lower back or hip region
      prior to his accident of 8/0 1/20 15. He is reassured that the hip joint itself
      on the left greater than right is in no need of surgical intervention at this
      time. It appears more likely than not that his gluteal pain may be more
      back related than anything related to his his joints themselves. The patient
      will continue with a home exercise program. He is released again to be

                                            4
       seen [as needed].

(Emphasis added.) Id.

       Mr. Spencer provided evidence that Dr. Holt released him without restrictions
from his prior knee surgery and he returned to work. However, he did not introduce a
medical opinion to refute Dr. Harrison's opinion that the work injury did not contribute
more than fifty percent to his right knee problem. Therefore, as a matter of law, Mr.
Spencer has not come forward with sufficient evidence from which this Court concludes
that he is likely to prevail at a hearing on the merits with regard to his alleged right knee
injury. As a result, it is not necessary for the Court to address Mr. Spencer's claim for
temporary disability benefits related to his alleged right knee injury.

        In contrast, CCRS did not introduce a medical opinion to refute Dr. Harrison's
opinion that Mr. Spencer's current myofascial complaints are more likely than not related
to the work injury. Therefore, Mr. Spencer has come forward with sufficient evidence
from which this Court concludes that he is likely to prevail at a hearing on the merits with
regard to his hip/back/myofascial pain. Dr. Harrison did not recommend any treatment
(other than a home exercise program) for Mr. Spencer's myofascial pain and released him
to return as needed. With regard to his claim for temporary disability benefits, Mr.
Spencer did not provide a medical opinion to establish he was unable to work as a result
of his myofascial pain. Therefore, he has not established that he is entitled to temporary
disability benefits due to his hip/back/myofascial injury.


IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Spencer's claim against Cades Cove Riding Stable and its workers'
      compensation carrier for the requested medical and temporary disability benefits
      related to his alleged right knee injury is denied at this time.

   2. Cades Cove Riding Stable shall allow Mr. Spencer to return as needed to Dr.
      Harrison for reasonable, necessary, and related treatment for his
      hip/back/myofascial pain. Mr. Spencer's claim for temporary disability benefits
      related to his hip/back/myofascial pain is denied at this time.

   3. This matter is set for an Initial (Scheduling) Hearing on Wednesday, September
      7, 2016, at 9:00A.M. Eastern Time.




                                             5
       ENTERED this the 6th day of July, 2016.




                                  Judge Lisa Lowe Knott
                                  Court of Workers' Compensation Claims



Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Lisa Lowe Knott, Court
of Workers' Compensation Claims. You must call 865-594-0109 or toll-free at 855-
383-0003 to participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.


Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice

                                            6
   of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
   will consider the Affidavit of Indigency and issue an Order granting or denying
   the request for a waiver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of
   lndigency in accordance with this section shall result in dismissal of the
   appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal,
   may request, from the Court Clerk, the audio recording of the hearing for the
   purpose of having a transcript prepared by a licensed court reporter and filing it
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers' Compensation
   Claims and must be approved by the workers' compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant's
   position statement. All position statements pertaining to an appeal of an
   interlocutory order 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.




                                         7
                                      APPENDIX

Exhibits:
       •     EXHIBIT 1: Affidavit of Gerald Spencer;
       •     EXHIBIT 2: Affidavit of Ronald Lee;
       •     EXHIBIT 3: Affidavit of Jessica Parker;
       •     EXHIBIT 4: NSPC Riding Stables at Cades Cove August 2015 Accident
             Report Log;
      •      EXHIBIT 5: NSPC Employee Work Schedule;
      •     EXHIBIT 6: Gerald Spencer's Work Schedule, as prepared by Ronald Lee;
      •     EXHIBIT 7: Wage Statement, Form C-41 (for identification only);
      •     EXHIBIT 8: Medical Records of Dr. Edwin Holt, Ortho Tennessee (bate-
            stamped 0 1-17);
      •     EXHIBIT 9: Medical Records of University of Tennessee Medical Center
            (bates-stamped 18-20)
      •     EXHIBIT 10: Medical Records of University Orthopaedic Surgeons (bates-
            stamped 21-23);
      •     EXHIBIT 11: Medical Records from Department of Veterans Affairs;
      •     EXHIBIT 12: Tennessee Department of Labor and Workforce Development,
            Division of Employment Security, Time Sensitive Request for Separation
            Information;
      •     EXHIBIT 13: Tennessee Department of Labor and Workforce Development,
            Employment Security Division, Decision of Appeals Tribunal;
      •     EXHIBIT 14: Medical Records of Dr. John E. Harrison, Tennessee Orthopedic
            Clinics;
      •     EXHIBIT 15: Written Accident Report, Incident on November 6, 2013;
      •     EXHIBIT 16: Letter from Dr. Edwin Holt, June 3, 2016;
      •     EXHIBIT 17: Discharge Summary from Ortho Tennessee, August 6, 2015;
      •     EXHIBIT 18: Form I-9, Employment Eligibility Verification;
      •     EXHIBIT 19: Gerald Spencer's Pay Stub, July 18, 2016;
      •     EXHIBIT 20: Gerald Spencer's Work Scheduled, as prepared by Ronald Lee
            (duplicate of Exhibit 6);
      •     EXHIBIT 21: Gerald Spencer and Nicholas Coppenger's Coinciding Work
            Schedule from March 2015 through November 2015, as prepared by Ronald
            Lee;
      •     EXHIBIT 22: ·Cades Cover Riding Stables Accident Report Log, August 2015;
            and
      •     EXHIBIT 23: Telephone Statement of Edward Kirkland, as prepared by
            Ronald Lee.




                                           8
Technical record: 3
      1. Petition for Benefit Determination;
      2. Dispute Certification Notice;
      3. Request for Expedited Hearing;
      4. Employer's Motion for Continuance;
      5. Employer's Position Statement;
      6. Employee's Response to Motion for Continuance;
      7. Order Denying CCRS's Motion for Continuance;
      8. Employee's Request for Statements;
      9. Employer's Motion to Quash Gerald Spencer's Subpoena for Witness
          Statements;
      10. Subpoena for Edward Kirkland;
      11. Subpoena for Cades Cove Riding Stables;
      12. Subpoena for Liberty Mutual Insurance Company;
      13. Order Granting Employer's Motion to Quash;
      14. Employee Motion to Quash Employer's Request for All Medical Records from
          the Department of Veteran's Affairs;
      15. Employer's Response to Employee's Motion to Quash Employer's Request for
          all Medical Records from the Department of Veteran Affairs;
      16. Notice of Filing Affidavit of Jessica Parker;
      17. Employer's Motion to quash Subpoena for Joe Lane to Testify at Expedited
          Hearing;
      18. Medical Records Exhibit List;
      19. Employee's Motion for a Hearing before the Judge Sooner than Later;
     20. Order;
     21. Employee's Filing of Doctor Notes;
     22. Response to Employee's Motion for Hearing;
     23. Employee's Response to Employer's Response to Motion for a Hearing;
     24. Order Denying Mr. Spencer's Motion for Hearing Sooner Rather than Later;
          and
     25. Order Setting Expedited Hearing.




3
   The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.




                                                      9
                            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 6th day of
July, 2016.


Name                        Certified Via       Via      Service sent to:
                            Mail      Fax       Email
Gerald Spencer,                X                  X      Gerald Spencer
Self-Represented                                         9003 C. Grayland Drive
Employee                                                 Knoxville, TN 3 7923
                                                         GerrvsoenceTI 23 02vahoo.com
Eric Shen, Esq.,                                   X     Eric.shen@libertymutual.com
Employer' s Attorney




                                         P nny Shr , Clerk of Court
                                         Court of  rkers' Compensation Claims
                                         WC.CourtCierk@tn.gov




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