              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT CHATTANOOGA

Robert Dennis, Jr.                                         )   Docket No.: 2015-01-0184
           Employee,                                       )
v.                                                         )   State File Number: 43330-2015
Polymer Components                                         )
            Employer,                                      )   Judge Audrey A. Headrick
And                                                       )
Accident Fund                                             )
            Insurance Carrier.                            )
                                                          )

                                  EXPEDITED HEARING ORDER
                                 GRANTING MEDICAL BENEFITS


       This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the Employee, Robert Dennis, on October 16,
20 15. The central _legal issue is whether the evidence is sufficient for the Court to
determine that Mr. Dennis is likely to prevail at a hearing on the merits. The employer,
Polymer Components, disputes that Mr. Dennis sustained an injury arising primarily out
of and in the course and scope of his employment. For the reasons set forth below, the
Court finds Mr. Dennis is entitled to the requested medical benefits. 1

                                               History of Claim

       Mr. Dennis is a fifty-one-year-old resident of Polk County, Tennessee. (T.R. 1.)
He works at Polymer as a "lixie cutter." (Ex. 1.) The parties stipulated that Mr. Dennis
sustained an injury on June 3, 2015, while on the premises ofPolymer during a break.

      Mr. Dennis testified that he took a break at approximately 9:15 a.m. He stated he
stepped outside of the building, which has a set of steps with no handrails. On cross-
examination, Mr. Dennis testified he walked across the grass to go to his truck "to vape"
because Polymer does not want anyone vaping in the building. 2 He acknowledged that
1
   A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
2
  "Vaping" is slang terminology that means to smoke an electronic cigarette.
he decided not to take the steps to get to his truck because it is closer to walk through the
grass. Mr. Dennis testified he stepped in a hole in the grass and fell. He stated several
people were in the smoking area when he fell. Mr. Dennis stated Loren Holden, the plant
manager, and Tammy Castleberry, the safety director, were called outside. Two co-
workers, "Kelly," the receptionist, and "Rick," the maintenance man, assisted him into an
employee's vehicle to go to the emergency room.

       Mr. Dennis testified he went to Starr Regional. At Starr Regional, Dr. David
Childress diagnosed Mr. Dennis with a right knee sprain, right shoulder sprain, and a
chest wall contusion. (Ex. 2.) Dr. Childress instructed Mr. Dennis to use crutches as
needed and to follow-up with Occupational Health in the next week "for return to regular
duty work." !d. He also restricted Mr. Dennis to no prolonged standing or walking. !d.
Dr. Childress prescribed Ibuprofen and noted that Mr. Dennis was taking Levaquin for
lower extremity cellulitis. !d. During cross-examination, Mr. Dennis admitted he had
prior arthritis problems with his right knee, for which he had sought treatment. Mr.
Dennis testified he could not walk the following morning. He stated he spoke with Ms.
Castleberry and told her he wanted to see a doctor. Ms. Castleberry authorized him to go
to Doctors Express.

       On June 4, 2015, Mr. Dennis saw Dr. Victoria Folsom at Doctors Express. (Ex.
3.) In the history Mr. Dennis provided, he stated he "[t]ripped in a hole at work while
going to his truck about 9:30 yesterday a.m." !d. Mr. Dennis also reported he "landed on
a cross tie with impact to the right upper chest wall." !d. He complained that he could
not bear weight on his right knee, had difficulty raising his right arm above his head, and
experienced pain with breathing. !d. Dr. Folsom noted Mr. Dennis was taking Levaquin
for right leg cellulitis. !d. She ordered a right-knee MRI due to "fall, hyperextension,
unable to weight bear." !d. Dr. Folsom took Mr. Dennis completely off work. !d. She
also discussed her treatment plan for Mr. Dennis' right knee with Ms. Holden, the plant
manager. !d. Dr. Folsom diagnosed Mr. Dennis with a right-knee injury, chest wall pain,
and shoulder strain. !d. After reviewing Mr. Dennis' right-knee MRI report, Dr. Folsom
wrote the following on the MRI report: "Tom lateral meniscus, possible medial too.
Diagnostic changes of the right knee large amount of fluid. Refer to ortho." !d.

       On June 5, 2015, Dr. Folsom spoke with Ms. Holden and recommended an
orthopedic referral for Mr. Dennis. !d. The medical record reflects Ms. Holden indicated
she would contact the insurance company to determine the physician to whom referral
should be made. !d. On the same day, Mr. Dennis returned to Doctors Express for
follow-up regarding his MRI, and Dr. Folsom advised him of her diagnosis of a meniscal
tear and orthopedic referral.

      Mr. Dennis testified Ms. Castleberry subsequently provided him with a panel from
which he selected Dr. Chad Smalley. Polymer scheduled an appointment with Dr.


                                             2
Smalley. 3 However, on June 15, 2015, Polymer filed a Notice of Denial. The basis for
the denial stated, "[c]laim is under investigation and a compensability decision cannot be
made at this time." (Ex. 5.) Mr. Dennis testified Polymer cancelled his appointment with
Dr. Smalley.

         At the expedited hearing, Mr. Dennis called Ralph Brett, the owner of Polymer, to
testifY. 4 Mr. Brett stated he was familiar with the concrete steps and walkway that go
from the building to the parking lot. He testified that most people use the steps, but some
people do not. Mr. Brett acknowledged the steps do not have handrails. He also testified
there are no signs posted requiring people to stay off the grass. Mr. Brett stated there is
not a company policy about the grass; however, he would like employees to walk on the
pavement.

        Mr. Dennis requested medical benefits. Specifically, Mr. Dennis requested that
Polymer pay for all of the past medical treatment authorized by Polymer. Although
Polymer paid for Mr. Dennis' medical treatment at Starr Regional and Doctors Express,
outstanding bills exist from his visit at Starr Regional and bills related to diagnostic
testing.

       Polymer asked the Court to deny Mr. Dennis' request for medical benefits.
Specifically, it argued that Mr. Dennis' claim must be denied under Lollar v. Wal-Mart
Stores Inc., 767 S.W.2d 143, 144 (Tenn. 1989), which addresses injuries incurred on the
employer's premises while going to and from the work place. Polymer specifically
argued that Mr. Dennis failed to satisfY the three requirements set forth in Lollar to
establish liability for an en route injury. 5

       Mr. Dennis filed a Petition for Benefit Determination seeking medical benefits.
(T .R. 1.) The parties did not resolve the disputed issues through mediation, and the
Mediating Specialist filed a Dispute Certification Notice on September 2, 2015. (T.R. 2.)
Mr. Dennis filed a Request for Expedited Hearing on October 16, 2015. (T.R. 3.) This
Court heard the matter on November 20, 2015.

                                   Findings of Fact and Conclusions of Law

      The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor

3
  The Court takes judicial notice of the fact that Dr. Chad Smalley is an orthopedic surgeon.
4
  Although Mr. Dennis called Lori Woods, his fiancee, to testify, her testimony did not provide any probative value
to the Court.
5
  An employee must show that: (I) he used a route required or provided by the employer on the employer's
premises; and, (2) the required route exposed the employee to a special hazard; or, (3) "the risks of travel are
directly incident to the employment itself." !d. at 144.

                                                        3
employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); 6 Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element
of his or her 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,
20 15). At an expedited hearing, an employee has the burden to 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. !d. 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. Carlex 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 order for an injury to be compensable, it must be accidental. Under the
Tennessee Workers' Compensation Law, an 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." Tenn.
Code Ann. § 50-6-102(13)(A) (2014). "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(13)(B) (2014). Further,
"[a]n injury causes ... the need for medical treatment only if it has been shown to a
reasonable degree of medical certainty that it contributed more than fifty percent (50%)
in causing the ... need for medical treatment, considering all causes[.]" Tenn. Code
Ann.§ 50-6-102(13)(C) (2014).

       In the present case, the Court respectfully disagrees with Polymer's contention that
Lollar, supra, is controlling. In Lollar, our Supreme Court held, "that a worker who is on
the employer's premises coming to or going from the actual work place is acting in the
course of employment." The Court also held, "that if the employer has provided a
parking area for its employees, that parking area is part of the employer's premises
regardless of whether the lot is also available to customers or to the general public." !d.

6
 The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July 1, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

                                                          4
at 150. The Supreme Court overruled its three-factor test because it was an unworkable
rule that resulted in inconsistent decisions in en route injury cases that were factually
similar. !d. at 149.

       In terms of precedent from the Tennessee Supreme Court, Mr. Dennis' case more
aptly falls within the line of cases involving injuries sustained by an employee on an
employer's premises during a break. The seminal case for injuries sustained by an
employee during a break is Holder v. Wilson Sporting Goods Co., 723 S.W.2d 104 (Tenn.
1987). However, the Court is cognizant that Holder's rationale relied in part upon a
remedial interpretation of pre-July 1, 2014 statutes. In Holder, the Tennessee Supreme
Court stated, "[t]he remedial policies of the Workers' Compensation Act would be
undermined if too severe a line were drawn controlling the compensability of injuries that
occur during the normal course of the work day after employees have arrived for work,
have started working, and before they have left for the day." !d. at 107.

        Likewise, the court in Wait v. Travelers Indem. Co., 240 S.W.3d 220 (Tenn.
 2007) quoted the holding cited above in Holder. The Wait court held it was
 "reasonable to conclude that the [employer] realized that the plaintiff would take
 personal breaks during the course of her working day including 'such incidental acts as
 eating, drinking, smoking, seeking toilet facilities, and seeking fresh air, coolness or
 warmth."' !d. at 226, citing Carter v. Volunteer Apparel, Inc., 833 S.W.2d 492, 495
 (Tenn. 1992)(citing 1A Arthur Larson, Workmen's Compensation Law, §§ 21.10-
 21.50) (1990)(footnote omitted)( emphasis added).

         The 20 13 Workers' Compensation Reform Act does not specifically address
 injuries sustained by employees on scheduled or authorized breaks on an employer's
 premises. Under the Reform Act, an injury is compensable if it arose primarily out of
 and in the course and scope of employment. See Tenn. Code Ann. § 50-6-102(13)(A)
 (2014). Accordingly, the Court finds that, despite the remedial interpretation of pre-
 July 1, 2014 statutes, the underlying logic used in Holder and Wait regarding injuries
 sustained by an employee on an employer's premises while taking a personal break is
 still relevant to cases falling under the Reform Act. Essentially, the Court in the
 present case must determine whether Mr. Dennis was "in the course and scope of
 employment" when he took a routine morning break to go out to his vehicle to "vape"
 and chose to walk through the grass to the parking lot instead of walking down stairs
 with no handrails.

        Long-standing authority states that "in the course of' employment refers to the
 time, place and circumstances of an injury. Hill v. Eagle Bend Mfg., Inc., 942 S.W.2d
 483, 487 (Tenn. 1997). In Plotner v. Metal Prep., No. W2012-02595-SC-WCM-WC,
 2014 LEXIS 677, at *7 (Tenn. Sept. 29, 2014), the Supreme Court stated:

      An injury by accident to an employee is in the course of employment if it

                                            5
       occurred while he was performing a duty he was employed to do; and it is
       an injury arising out of employment if caused by a hazard incident to such
       employment. Generally, an injury arises out of and is in the course and
       scope of employment if it has a rational connection to the work and occurs
       while the employee is engaged in the duties of his employment. (Citing
       Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn.
       1991 )(emphasis added)).

        As discussed above, the Legislature added "in the course and scope of
employment" to the definition of injury. Tenn. Code Ann. § 50-6-102(13)(A) (2014)
(emphasis added.) The Court must determine whether Mr. Dennis sustained his injuries
at a time and a place where he was expected to be and when he was doing something
incidental or rationally-connected to his work. During the expedited hearing, Mr. Dennis
testified he took a morning break at approximately 9:15 a.m. Polymer did not assert that
the break was unauthorized or that it did not permit smoking on the premises. Instead,
Polymer's sole contention is that Mr. Dennis' injuries are not compensable because he
walked through the grass to get to his truck instead of walking down the concrete stairs
and sidewalk. However, Ralph Brett, owner of Polymer, testified that, while most people
use the steps, some people do not. He acknowledged the concrete steps do not have
handrails; that there are no posted signs requiring people to stay off the grass; and, there
is no company policy requiring employees stay off the grass. Therefore, the Court finds
that Mr. Dennis sustained his injuries while performing an incidental act while in the
course and scope of his employment with Polymer.

       Additionally, the Workers' Compensation Appeals Board provided direction
regarding the requirements an employee with pre-existing conditions must satisfy in
order to qualify for medical benefits at an interlocutory hearing:

      In sum, to qualify for medical benefits at an interlocutory hearing, an
      injured worker who alleges an aggravation of a pre-existing condition must
      offer evidence that the aggravation arose primarily out of and in the course
      and scope of employment. See Tenn. Code Ann. § 50-6-102(13)(A)
      (2014). Moreover, the employee must come forward with sufficient
      evidence from which the trial court can determine that the employee would
      likely establish, to a reasonable degree of medical certainty, that the work
      accident contributed more than fifty percent in causing the aggravation,
      considering all causes. See Tenn. Code Ann. § 50-6-102(13)(B)-(C).
      Finally, an aggravation or exacerbation need not be permanent for an
      injured worker to qualify for medical treatment reasonably necessitated by
      the aggravation.

Miller v. Lowe's Home Centers, Inc., No. 2015-05-0158, 2015 TN Wrk. Comp.
App. Bd. LEXIS 40, at *18 (Tenn. Workers' Comp. App. Bd. Oct. 21, 2015).

                                             6
        Mr. Dennis acknowledged that he had a pre-existing right-knee condition as
reflected in the medical records. However, on June 5, 2015, Dr. Folsom, an authorized
physician, diagnosed Mr. Dennis with "acute meniscal tear, medial" after reviewing his
right-knee MRI. (Ex. 3.) She also referred Mr. Dennis to an orthopedist. !d. Given
these facts, the Court finds the evidence is sufficient to determine that Mr. Dennis is
likely to prevail at a hearing on the merits.

 IT IS, THEREFORE, ORDERED as follows:

   1. Polymer or its workers' compensation carrier shall, at Mr. Dennis' discretion,
      either authorize him to see Dr. Chad Smalley or provide him with a panel of
      orthopedic surgeons compliant with Tennessee Code Annotated section 50-6-
      204(a)(3) (2014) for evaluation and/or treatment of the injury of June 3, 2015. Mr.
      Dennis or the providers shall furnish Polymer, or its carrier, bills for the charges
      incurred for compensable care, and Polymer or its carrier shall timely pay said
      charges.

   2. Upon presentment of bills by Mr. Dennis or his treating providers, Polymer or its
      carrier shall timely pay the charges for past treatment of Mr. Dennis' work-related
      injuries by, or upon the prescription of, Starr Regional and Doctors Express.

   3. This matter is set for a Scheduling Hearing on January 20, 2015, at 10:30 a.m.,
      EDT.

   4. Unless interlocutory appeal of the Expedited Hearing Order is filed,
      compliance with this Order must occur no later than seven business days
      from the date of entry of this Order as required by Tennessee Code
      Annotated section 50-6-239(d)(3) (2014).   The Insurer or Self-Insured
      Employer must submit confirmation of compliance with this Order to the
      Bureau by email to WCCompliance.Program@tn.gov no later than the
      seventh business day after entry of this Order. Failure to submit the
      necessary confirmation within the period of compliance may result in a
      penalty assessment for non-compliance.

   5. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email WCComplian .Program ,tn.gov or by calling (615)
      253-1471 or (615) 532-1309.




                                           7
ENTERED this the 18th day of December, 2015.



                                  Judge Audr ~.Headrick
                                  Court of Workers' Compensation Claims

Initial (Scheduling) Hearing:

      A Scheduling Hearing has been set with Judge Audrey A. Headrick, Court of
Workers' Compensation Claims. You must call 423-634-0164 or toll free at 855-
383-0001 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. All conferences are set using Eastern Time (ET).


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
      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


                                            8
   Indigency 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.




                                         9
                                               APPENDIX

Exhibits:
1.     Affidavit of Mr. Dennis
2.     Medical records of Starr Regional
3.     Medical records of Doctors Express
4.     First Report
5.     Documents received by Mr. Dennis from Accident Fund
6.     Billing records from Starr Regional

Marked for Identification Purposes Only:
1.   Photographs of (the grassy area where Mr. Dennis fell)
2.   Google photographs of Polymer

Technical record: 7
1.    Petition for Benefit Determination, July 15,2015
2.    Dispute Certification Notice, September 2, 2015
3.    Request for Expedited Hearing, October 16, 2015
4.    Notice of Scheduled Hearing, October 27,2015




7
    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.

                                                      10
                                    CERTIFICATE OF SERVICE

              I hereby certify that a true and correct copy of the Expedited Hearing Order
       Granting Medical Benefits was sent to the following recipients by the following methods
       of service on this the 18th day ofDecember, 2015.


Name                    Certified   First   Via    Fax    Via       Email/Mail Address
                        Mail        Class   Fax    Number Email
                                    Mail
Robert Dennis, Jr.          X                                 X     robertdennis.l2864@gmail.corn
                                                                    268 Circle R. Drive
                                                                    Benton, TN 37307
Gordon Aulgur, Esq.                                           X     gordon.aulgur@accidentfund.com




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




                                                    11
