                                                                                    FILED
                                                                                 May 24, 2019
                                                                                 08:53 AM(CT)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                    CLAIMS




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

RICK 0. MUNCY,                               ) Docket No. 2017-03-0447
          Employee,                          )
v.                                           )
PREMIUM DISTRIBUTORS, INC.,                 ) State File No. 54717-2016
         Employer,                          )
And                                         )
FFVA MUTUAL INSURANCE                       ) Judge Lisa A. Lowe
COMPANY,                                    )
         Carrier.                           )


              EXPEDITED HEARING ORDER DENYING BENEFITS
                          Decision on the Record


       This matter came before the Court on Mr. Muncy's Request for Expedited Hearing
seeking a decision on the record as to temporary partial disability (TPD) benefits.
Premium Distributors objected and asked for an in-person hearing. Based on the limited
TPD issue and Premium Distributors' failure to identify a need for live testimony, the
Court overruled the objection and allowed the parties until May 14, 2019, to submit
documentation for the Court's consideration.

       The central legal issue is whether Mr. Muncy is likely to prevail at a hearing on
the merits on entitlement to temporary partial disability benefits from January 8, 2019, to
the present. For the reasons below, the Court holds he is not.

                                    History of Claim

        Mr. Muncy delivered ice cream for Premium Distributors. On July 14, 2016, he
began experiencing bilateral elbow and low back pain while unloading ice cream. Mr.
Muncy selected Dr. Gerald Russell as his authorized treating provider. Dr. Russell
provided conservative treatment and referred Mr. Muncy to Dr. Robert Ivy for treatment
of his elbow. Following an earlier Expedited Hearing about Mr. Muncy's back condition,
the Court ordered Premium Distributors to provide Mr. Muncy with a return visit to Dr.
Russell to evaluate and treat any work-related back injury.'

      Mr. Muncy returned to see Dr. Russell, who ordered a MRI, placed restrictions of
no bending and no lifting more than twenty pounds on January 8, 2019, and referred Mr.
Muncy to an orthopedic surgeon.

       Mr. Muncy seeks temporary partial benefits from January 8 to the present.
Premium Distributors argued Mr. Muncy is not entitled to TPD benefits because Dr.
Russell never related the treatment and restrictions to the work injury. It also stated that
an award of TPD benefits is premature since an orthopedic surgeon, who can address the
causation issue, has not evaluated Mr. Muncy.

                              Findings of Fact and Conclusions of Law

        Mr. Muncy need not prove every element of his claim by a preponderance of the
evidence to obtain relief. Instead, he must present sufficient evidence to prove he is
likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

        As the name implies, an injured worker is entitled to TPD benefits, a category of
vocational disability distinct from temporary total disability (TTD), when the temporary
disability is not total. See Tenn. Code Ann. § 50-6-207(1)-(2). Specifically, while TTD
refers to the employee's condition while completely unable to work because of the injury
until the worker recovers as far as the nature of the injury permits, "[TPD] refers to the
time, if any, during which the injured employee is able to resume some gainful
employment but has not reached maximum recovery." Frye v. Vincent Printing Co.,
2016 TN Wrk. Comp. App. Bd. LEXIS 34, at *15-16 (Aug. 2, 2016.)

       Here, the issue is Mr. Muncy's entitlement to TPD benefits since Dr. Russell
placed restrictions. In the previous Expedited Hearing Order, the Court found that Mr.
Muncy was entitled to a return appointment with Dr. Russell to determine whether his
back symptoms related to the work injury. The Court finds that Dr. Russell initiated
conservative treatment and referred Mr. Muncy to an orthopedic surgeon but never
addressed whether Mr. Muncy's current complaints were caused by the work injury.
Without a causation opinion from Dr. Russell or the orthopedic surgeon, the Court is
unable to find that Mr. Muncy's restrictions and thus resultant TPD claim relate to the
work injury.

      Therefore, the Court concludes Mr. Muncy failed to come forward with sufficient
evidence that he is likely to prevail at a hearing on entitlement to TPD benefits.


1
    Premium Distributors appealed the decision and the Appeals Board affirmed the trial court's decision .

                                                       2
IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Muncy's claim against Premium Distributors for TPD benefits is denied at
      this time.

   2. This matter is set for a Status Conference on July 26, 2019, at 2:00p.m. Eastern
      Time. The parties must call (toll-free) (855) 383-0003 to participate in the Status
      Conference. Failure to appear by telephone may result in a determination of the
      issues without the parties' further participation.

      ENTERED May 24,2019.



                                 LISA A. LOWE, JUDGE
                                 Court of Workers' Compensation Claims

                                     APPENDIX

Exhibits:

   1. Petition for Benefit Determination
   2. Physical Work Performance Evaluation ofErgoScience, dated July 30, 2016
   3. Dispute Certification Notice
   4. Request for Expedited Hearing
   5. Affidavit of Rick 0. Muncy
   6. Mr. Muncy's Report oflnjury Form
   7. Medical Reports of Dr. Gerald Russell
   8. Employee's Choice of Physicians, Form C-42
   9. Mr. Muncy's Brief in Support of Request for Expedited Hearing
   10. Premium Distributor's Response in Opposition
   11. Medical Questionnaire of Dr. Gerald Russell, dated June 4, 2018
   12. Premium Distributer's Pre-Hearing Brief
   13. Expedited Hearing Order Granting Medical Benefits, issued August 27, 2018
   14. Second Request for Expedited Hearing, filed on March 25, 2019
   15. Second Affidavit of Rick Muncy
   16. Premium Distributor's Response in Opposition to Second Request
   17. Mr. Muncy's Supplemental Submission in Support of Request
   18. Order Overruling Objection to On-The-Record Determination
   19.Docketing Notice for On-The-Record Determination




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                         CERTIFICATE OF SERVICE

      I certify that a correct copy of the Expedited Hearing Order was sent to the
persons below as indicated on May 24, 2019.

         Name           Certified   Fax       Email    Service sent to:
                         Mail
Ameesh Kherani,                                X       akherani@davidhdunaway .com
Employee's Attorney
Tiffany B. Sherrill,                           X       tbsherrill@mij s. com
Employer's Attorney




                                                      RUM, Court Clerk
                                     WC.Cou        ~:Clerk@tn.gov




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