                                                                                  FILED
                                                                               Mar 18, 2020
                                                                               01:04 PM(CT)
                                                                                TENNESSEE
                                                                           WORKERS' COMPENSATION
                                                                              APPEALS BOARD

            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Kenneth Friend                              )   Docket No.      2019-03-1017
                                            )
v.                                          )   State File No. 46052-2019
                                            )
Staples Contract and                        )
Commercial, LLC, et al.                     )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Brian K. Addington, Judge                   )

                               Affirmed and Remanded

The employee, a sales manager at an office supply store, alleged he suffered a right knee
injury as a result of performing work activities over a two-day period. After timely
reporting his injury, the employee sought medical care at a hospital emergency
department and was referred to an orthopedic surgeon who subsequently diagnosed a tear
in the employee’s meniscus and recommended surgery. The employer denied the claim,
contending the employee did not suffer a compensable accidental injury based upon the
medical proof establishing that the employee suffered an acute injury rather than a
gradual injury. Following an expedited hearing in which the employee sought medical
and temporary disability benefits, the trial court ordered the employer to provide medical
benefits, including the recommended knee surgery, and denied the employee’s request for
temporary disability benefits. Both parties have appealed. We affirm the trial court’s
order and remand the case.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele I. Godkin joined.

J. Allen Callison, Nashville, Tennessee, for the employer-appellant/appellee, Staples
Contract and Commercial, LLC

Timothy A. Roberto, Knoxville, Tennessee, for the employee-appellee/appellant,
Kenneth Friend




                                            1
                          Factual and Procedural Background

       Kenneth Friend (“Employee”) was fifty years old when he alleged injuring his
right knee in the course and scope of his work as a sales manager with Staples Contract
and Commercial, LLC (“Employer”), in Knoxville, Tennessee. He described changing
out and “reworking” displays and price tags and moving products around in Employer’s
“back to school” season on June 19 and 20, 2019, which he said required him to kneel,
stoop, twist, bend, and crawl throughout his nine-hour shifts. He described having to “sit
on [his] knees” to stock and properly label and price the lowest shelves and having to
bend and twist to get up from the floor. Employee testified he told his supervisor his
knee was hurting “from crawling around” and, in “a joking manner,” that he “must be
getting old.” In an affidavit Employee filed in support of his request for an expedited
hearing, he stated that “[o]n June 19, 2019, [he] mentioned to [his] supervisor . . . that
[he] was having some knee pain as a result of [his] work.” No one disputed Employee’s
testimony that he gave notice of his knee pain to his supervisor on June 19.

        Employee testified he was not having any problems with his knees before those
two days and did not have a history of knee complaints. He was not scheduled to work
on June 21 and testified that when he woke up that morning, his right knee was swollen,
and he realized he had more than just soreness. He stated that when he and his supervisor
opened the store on the morning of June 22, he told his supervisor about his knee
swelling and that she instructed him to call Employer’s workers’ compensation insurance
carrier. He further testified that the carrier verbally gave him a list of medical providers
and instructed him to go to one of the providers within twenty-four hours.

       On June 23, Employee went to Blount Memorial Hospital’s emergency
department, one of the facilities included on the list of providers given him by the carrier.
He testified he selected that facility because it was the weekend and the other offices
were closed. The report of his visit described “[right] knee pain after twisting injury at
work” and indicated x-rays were taken. The radiology report included an impression of
“mild soft tissue fullness . . . [that] suggests a small joint effusion.” Employee was
referred to an orthopedic surgeon, Dr. Todd Griffith, whom Employee first saw three
days later.

       Dr. Griffith’s June 26, 2019 report stated that Employee “developed right knee
pain after doing a lot of squatting and twisting activity with his right knee on 06/19 and
06/20” and that Employee’s examination was “consistent with medial meniscal
pathology.” Dr. Griffith recommended an MRI, instructed Employee to stay on crutches,
and suggested that Employee should limit his work to sedentary duty. A July 3 MRI was
interpreted as indicating a medial meniscal tear, probable MCL sprain, patellofemoral
and proximal tibia-fibula osteoarthritis, and small joint effusion. Upon Employee’s
return to Dr. Griffith on July 5, the doctor recommended arthroscopic surgery and took
Employee off work until after he was reevaluated following surgery.

                                             2
        Employer denied the claim, asserting that the undisputed medical proof
established Employee suffered an acute injury, but that Employee alleged a gradually
occurring injury or repetitive stress injury and was unable to identify the specific incident
resulting in his injury. Both parties sent written questionnaires to Dr. Griffith. In
response to Employee’s questionnaire, Dr. Griffith indicated that Employee “suffered an
acute injury in the form of a meniscal tear at work,” and that the work Employee
performed on June 19 and 20 “was more than 50% the cause of his right meniscal tear
considering all causes.”

       Responding to Employer’s questionnaire, Dr. Griffith indicated that Employee’s
medial meniscal tear and MCL sprain were “primarily ([greater than] 50%) caused or
aggravated by [Employee’s] employment.” Responding to a question asking whether
Employee’s injuries were “caused by acute/traumatic events or by repetitive injuries,” Dr.
Griffith indicated the injuries were caused by “[t]raumatic/acute injury.” Dr. Griffith also
indicated the meniscal tear was not a degenerative condition, and he explained the
mechanism of injury as follows:

       Squatting and twisting at work on 6/19 [and] 6/20. Within 24 [hours], had
       effusion. Hyperflexed knee [with] twist puts stress on posterior horn of
       medial meniscus and MCL [which were] the injuries noted on MRI [and]
       exam.

       Following an evidentiary hearing, the trial court identified the primary issue as
“whether [Employee] suffered an injury as defined in [Tennessee’s] Workers’
Compensation Law.” Noting that Tennessee Code Annotated section 50-6-102(14)(A)
“provides that an injury is ‘accidental’ only if the injury is caused by a ‘specific incident
or set of incidents,’” the court stated that Employee “told his co-worker and supervisor
that he injured his knee at work” and “told his medical providers that his injury happened
while squatting and twisting at work.” Addressing Employer’s argument that Employee
“must be more specific as to the time the injury occurred,” the court stated that it “[was]
not sure how [Employee] could be more specific.” The trial court determined that
Employee was likely to prove at trial that his right knee condition arose primarily out of
his employment and ordered Employer to approve the surgery recommended by Dr.
Griffith and provide further medical benefits in accordance with the workers’
compensation law.

        Addressing Employee’s request for temporary disability benefits, the court noted
that Employer paid Employee’s wages through July 5, the date that Dr. Griffith took
Employee off work. The court stated that Employee “applied for and continues to
receive short-term disability benefits from [Employer],” adding that Employer “is entitled
to set off any temporary disability benefits from any payment under an employer-funded
disability plan.” Although the precise basis for the trial court’s determination to deny
temporary disability benefits is unclear, the court stated that Employee “worked for his

                                             3
family’s barbeque business for several weeks after the injury, which would also serve to
reduce or exclude any temporary disability benefits.” “Under these circumstances,” as
stated by the court, it denied Employee’s request for temporary disability benefits “at this
time.” Both parties have appealed.

                                   Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2019). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2019).

                                         Analysis

       Employer raises a single issue on appeal, questioning the “degree of specificity”
required for Employee to establish that his injury was due to a “specific incident, or set of
incidents . . . identifiable by time and place of occurrence,” as contemplated by
Tennessee Code Annotated section 50-6-102(14)(A). Employee raises two issues. First,
Employee asserts the trial court erred by failing to order temporary total disability
benefits. Second, Employee contends the trial court erred in admitting into evidence
surveillance video of Employee. For the reasons that follow, we conclude the
preponderance of the evidence supports the trial court’s determination that Employee
would likely prevail at trial in establishing he suffered an injury by accident arising
primarily out of his employment. We also conclude the evidence supports the trial
court’s determination not to award temporary disability benefits. Our resolution of these
two issues makes it unnecessary to address Employee’s second issue concerning the
admissibility into evidence of the surveillance video.




                                             4
                                 Employee’s Alleged Injury

        Tennessee Code Annotated section 50-6-102(14) (2019) defines “injury” and
“personal injury” to mean an “injury by accident . . . arising primarily out of and in the
course and scope of employment, that causes . . . disablement or the need for medical
treatment.” Subsection 50-6-102(14)(A) provides that “[a]n injury is ‘accidental’ only if
the injury is 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.” Employer’s defense rests on its assertion that Employee suffered an acute
injury, as opposed to what Employer characterizes as a “gradual injury,” which Employer
argues requires there to be a specific incident identifiable by time and place of
occurrence. It asserts the medical evidence is unequivocal in establishing that Employee
suffered an acute injury, but Employee testified he sustained a gradually occurring injury
over two days of work. According to Employer, “[i]t is this discrepancy that serves as
the crux of the dispute.” By contrast, Employee contends he adequately identified the
incident or set of incidents resulting in his injury by pointing to specific activities
performed over an identifiable two-day time period.

       Further addressing section 50-6-102(14)(A), Employer asserts there are two
different types of compensable injuries, those resulting from “a specific incident,” and
those resulting from a “set of incidents.” According to Employer,

        once [it is] established what “type” of injury is alleged, the statute then
       provides three requirements for establishing a compensable injury: (14)(A)
       requires that it must be identifiable by time and place of occurrence;
       (14)(B) requires that the injury primarily arise out of the employment; and
       (14)(C) requires that the injury be the primary cause of the disablement or
       need for medical treatment.

In this appeal, Employer asserts the only criterion at issue is whether the acute injury is
identifiable “by time and place of occurrence.” Based upon Employee’s assertion that
repetitive bending, squatting, stooping, and crawling over a two-day period resulted in his
injury and his inability to identify a specific event that resulted in his injury, Employer
contends Employee “failed to establish a prima facie case of a compensable injury under
the statutory definition.” We disagree.

        Employee relies on our decision in Smiley v. Four Seasons Coach Leasing, Inc.,
Nos. 2016-06-0104 & -0105, 2016 TN Wrk. Comp. App. Bd. LEXIS 28 (Tenn. Workers’
Comp. App Bd. July 15, 2016), in which we held that the proof presented by an employee
bus driver of a “series of incidents” over a nineteen-day period was sufficient to allow the
trial court to determine that the employee would likely prevail at trial in establishing a
compensable injury. Similar to the present case, in Smiley, the employer argued that the


                                              5
employee had not presented sufficient proof of a specific incident to establish that he
would likely prevail at trial. We disagreed, stating,

       [the employer’s] position is unduly restrictive and fails to take into account
       the legislature’s use of the phrase “set of incidents” in section 50-6-
       102(14)(A). In amending the definition of “injury,” the legislature made
       clear that a “set of incidents” that is “identifiable by time and place of
       occurrence” can constitute an “injury by accident” as that phrase is used
       in Tennessee Code Annotated section 50-6-103 (2015) (“Every employer
       and employee subject to this chapter, shall, respectively, pay and accept
       compensation for personal injury . . . by accident arising primarily out of
       and in the course and scope of employment . . . .”). A “set of incidents,” by
       definition, cannot occur instantaneously, but must occur over some period
       of time. Thus, to establish a compensable injury by accident, an employee
       need not prove a single, sudden event accompanied by the immediate onset
       of pain or other symptoms, but can meet his or her burden at an expedited
       hearing by presenting evidence from which the trial court can determine he
       or she is likely to prove a compensable set of incidents over an identifiable
       period of time.

Id. at *21-22.

       Employer attempts to distinguish Smiley based upon the medical proof, asserting
there was no medical evidence of an acute/traumatic injury in Smiley, whereas here, the
undisputed medical proof established that Employee suffered an acute/traumatic injury.
The critical issue is whether Employee’s knee injury arose primarily out of a specific
incident or set of incidents. We do not perceive the medical proof that Employee
suffered an acute traumatic injury as suggesting there could not have been a set of
incidents that resulted in Employee’s acute injury. Rather, we perceive the medical proof
as supporting Employee’s testimony that the work activities he described performing
over the two-day period he identified constituted a set of incidents that led to his acute
injury as contemplated in section 50-6-102(14)(A).

       Employer cites two of our prior opinions in support of its position, neither of
which we find controlling in this case. First, Employer relies on Watson v. Catlett
Construction, No. 2017-05-0515, 2018 TN Wrk. Comp. App. Bd. LEXIS 68 (Tenn.
Workers’ Comp. App. Bd. Dec. 14, 2018), in asserting that an employee must identify a
specific incident to establish a compensable injury. However, the employee’s claim for
benefits in that case was denied not because his allegations were not sufficiently specific
but because of inconsistencies in those allegations, a lengthy history of similar
complaints, and concerns regarding the employee’s credibility.



                                             6
        Employer also contends Stanley v. WalMart, Inc., No. 2015-05-0025, 2015 TN
Wrk. Comp. App. Bd. Lexis 17 (Tenn. Workers’ Comp. App. Bd. June 26, 2015), is
similar to the instant case. However, in Stanley the entirety of the evidence presented at
an expedited hearing was limited to twenty-four exhibits, and there was no in-person
testimony. The evidence of the employee’s own statements was limited to those in a
patient intake form and in an incident report the employee completed. Comparing those
statements with information in the medical records, the trial court noted there were
differing statements indicating uncertainty on the employee’s part in defining the
mechanism of his injury. In addition, the employer presented sworn statements
indicating the employee had been unable to identify an incident or a set of incidents that
resulted in his injury. Against that background, the trial court determined that the
employee had failed to carry his burden of proof to establish an injury by accident, and
we affirmed the trial court. The facts in both Watson and Stanley are distinguishable from
those currently before us.

        In the present case, Employee identified specific physical activities he performed
over the course of a narrow and identifiable period of time that resulted in his right knee
injury. His co-worker corroborated his testimony as to the work Employee performed,
stating that “halfway through the day [Employee] was limping around,” and that
“[b]efore the end of the shift [Employee] was at the point where I told him that he needed
to sit down because the limp had become very apparent.” The fact that Employee was
unable to point to the specific moment in time that a tear occurred to his medial meniscus
does not prevent his claim from being compensable. Employee successfully met his
burden at the expedited hearing by identifying the time and place of his injury – a two-
day period over which he performed specific physical tasks that his physician opined are
consistent with the type of injury he sustained.

                              Temporary Disability Benefits

        Turning to Employee’s issues on appeal, his first issue was phrased as whether the
trial court erred when it failed to order Employer to issue temporary total disability
benefits. However, the argument in Employee’s brief was limited to the assertion that
Employer violated Tennessee Code Annotated section 50-6-128 (2019). That statute
provides that an employer may not offset any sickness and accident income benefit paid
to an employee against the employer’s temporary total disability benefit payment liability
if the employer “knowingly, willfully, and intentionally causes a . . . loss wage claim to
be paid under health or sickness and accident insurance.” Tenn. Code Ann. Section 50-6-
128.

       Employee testified that he received short-term disability payments of varying
amounts over a period of time beginning August 31, 2019, and extending to the date of
the expedited hearing. The parties stipulated that Employee waived temporary total
disability benefits for five specific weeks following his injury because, according to

                                            7
Employee, he could not “prove or disprove that he didn’t have income in those weeks”
from his family’s food business. In its order denying temporary disability benefits, the
trial court stated that Tennessee Code Annotated section 50-6-114(b) “entitled
[Employer] to set off any temporary disability benefits from any payment under an
employer-funded disability plan,” but the court also noted that Employee “worked for his
family’s barbeque business for several weeks after the injury, which would also serve to
reduce or exclude any temporary disability benefits.” Based on these circumstances, the
trial court denied Employee’s request for temporary disability benefits “at this time.”

        Employee testified that he last worked for Employer on July 5, 2019, and that he
subsequently attended three fairs and two festivals where his family had a food trailer.
He denied selling or serving food, but stated “that’s not to say if somebody went to the
bathroom or something [he] didn’t [sell or serve food] if there was a customer.” He
admitted he hauled the trailer in and out of the event locations and that he “did wipe some
things down.” Considering the stipulation that Employee waived temporary total
disability benefits for five weeks after his injury and his testimony concerning what, if
any, work he performed in connection with the family’s food business, we conclude the
trial court did not err in denying temporary disability benefits. Without an award of
temporary total disability benefits, there is no issue to be addressed concerning an offset
of the short-term disability benefits paid to Employee against Employer’s temporary total
disability benefit payment liability as contemplated in Tennessee Code Annotated section
50-6-128. 1 Accordingly, we find no merit in Employee’s first issue.

       Our resolution of the issues addressed above makes it unnecessary to address
whether the trial court erred in admitting into evidence the video surveillance of
Employee, and we offer no opinion as to its admissibility.

                                             Conclusion

       For the foregoing reasons, we affirm the decision of the trial court. Costs on
appeal are taxed to Employer.




1
  In reaching our conclusion concerning the trial court’s denial of temporary disability benefits, we
express no opinion as to the applicability or interpretation of Tennessee Code Annotated section 50-6-128
(2019).
                                                   8
                 TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                   WORKERS’ COMPENSATION APPEALS BOARD

Kenneth Friend                                        )      Docket No. 2019-03-1017
                                                      )
v.                                                    )      State File No. 46052-2019
                                                      )
Staples Contract and Commercial, LLC, et al.          )
                                                      )
                                                      )
Appeal from the Court of Workers’                     )
Compensation Claims                                   )
Brian K. Addington, Judge                             )

                                   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 18th day
of March, 2020.


 Name                              Certified   First Class   Via   Via     Sent to:
                                   Mail        Mail          Fax   Email
 Timothy A. Roberto                                                  X     troberto@brownandroberto.com
 Jamie Lampien                                                       X     jlampien@brownandroberto.com
 J. Allen Callison                                                   X     allen.callison@mgclaw.com
 Brian K. Addington, Judge                                           X     Via Electronic Mail
 Kenneth M. Switzer, Chief Judge                                     X     Via Electronic Mail
 Penny Shrum, Clerk, Court of                                        X     penny.patterson-shrum@tn.gov
 Workers’ Compensation Claims




Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
