             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT KINGSPORT

Darryl Lee Taylor                                         )   Docket No.: 2015-02-0174
            Employee,                                     )
v.                                                        )    State File Number: 43346/2015
City of Kingsport                                         )
             Employer,                                    )   Judge Brian K. Addington
And                                                       )
Tri State Claims Service                                  )
             TPA.                                         )


     EXPEDITED HEARING ORDER DENYING ADDITIONAL MEDICAL AND
                  TEMPORARY DISABILITY BENEFITS


       The present focus of this case is the compensability of an employee's injury,
sustained while unlocking a water meter at work. The central legal issues are whether the
injury arose primarily out of and in the course and scope of employment and/or whether
Mr. Taylor suffered a compensable aggravation of his pre-existing condition. 1 For the
reasons set forth below, the Court finds the injury not compensable and denies the
requested relief at this time.

                                              History of Claim

       Employee, Darryl Taylor, is a fifty-three year-old resident of Washington County,
Tennessee. {T.R. 1 at 1.) He works for the City of Kingsport (Kingsport) as a water
service worker. (See Ex. 4 at 1.) On May 26, 2015, after unlocking a water meter, his
left knee popped as he stood up, causing pain. (Ex. 1.)

       Mr. Taylor testified he notified his supervisor of the incident and spoke to Katrina
Hanog, who internally handles Kingsport's workers' compensation claims. She
presented Mr. Taylor with a panel of physicians, and he chose Dr. Gregory Jeansonne
because he previously treated a work- injury to Mr. Taylor's left leg. (Ex. 2, Ex. 6 at 11.)
The parties settled Mr. Taylor's prior injury with a provision for open medical benefits.
1
 Additional infonnation regarding the technical record and exhibits admitted at the Expedited Hearing is attached to
this Order as an Appendix.

                                                          1
Dr. Jeansonne examined Mr. Taylor's left leg in the interim between his prior work-
injury and his current injury and opined Mr. Taylor suffered degenerative issues in his
left knee. (Ex. 6, at 5.)

       During the initial visit following the May 26, 2015 incident, Dr. Jeansonne noted
that Mr. Taylor previously sustained a work-related injury to his left knee in January
2011. (Ex. 6 at 3.) Mr. Taylor explained his knee popped on May 26, 2015, and he
suffered no additional mechanical symptoms afterward. !d. Dr. Jeansonne performed a
physical examination, which revealed a "40 cc effusion, significant pain and crepitus with
patellar grind." Dr. Jeansonne opined he did not believe Mr. Taylor suffered an
additional meniscal injury, but rather an exacerbation of his patellofemoral arthritis. !d.
Dr. Jeansonne recommended a cortisone injection and ordered x-rays of the left knee. !d.
at 3-4. X-rays indicated degenerative changes. !d., at 4.

       On June 8, 2015, Kingsport filed a Form C-23 Notice of Denial, which stated the
"injury did not occur due to course and scope of employment." (Ex. 5.) The Notice
indicated that Kingsport denied Mr. Taylor's claim on May 26, 2015, and notified him
and his physicians of the denial that same day. !d.

       Dr. Jeansonne examined Mr. Taylor again on June 10, 2015. Mr. Taylor reported
only short-term relief from the cortisone injection and a quick return to baseline. (Ex. 6
at 2.) Following the examination, Dr. Jeansonne opined, "Left knee traumatic arthritis,
likely related to his previous on-the-job injury." !d. Dr. Jeansonne wrote in the Plan,
"This has been exacerbated by a new fall at work." !d. He recommended a total left-
knee arthroplasty because Mr. Taylor did not respond to conservative treatment. !d.

       Kingsport treated Dr. Jeansonne's surgery request as a request for surgery for Mr.
Taylor's prior 2011 work injury. Kingsport sent the request to its Utilization Review
agent, which denied the surgery. (Ex. 7.)

      Mr. Taylor has not worked since the May 26, 2015 incident.             Neither party
submitted off--work slips or work restrictions from Dr. Jeansonne.

       Mr. Taylor filed a Petition for Benefit Determination seeking additional medical
and temporary disability benefits. (T.R. 1 at 1.) The parties did not resolve the disputed
issues through mediation, and the Mediating Specialist filed a Dispute Certification
Notice. (T.R. 5.) Mr. Taylor filed a Request for Expedited Hearing pursuant to
Tennessee Code Annotated section 50-6-239 (2014). (T.R. 6.) This Court heard the
matter on September 17, 2015. At the Expedited Hearing, Mr. Taylor asserted he injured
his leg at work on May 26, 2015 and was entitled to additional medical treatment and
temporary disability benefits. Kingsport countered that Mr. Taylor did not suffer a
compensable injury or aggravation on May 26, 2015, and was not entitled to medical or
temporary disability benefits.

                                             2
                              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
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); 2 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,
2015). 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.

       To be compensable under the workers' compensation statutes, an injury must arise
primarily out of and occur in the course and scope of the employment. Tenn. Code Ann.
§ 50-6-102(13) (2014). An aggravation of a pre-existing injury is not compensable
unless the aggravation arose primarily out of and in the course and scope of employment.
Tenn. Code Ann.§ 50-6-102 (l3)(A) (2014).

        The Supreme Court has made clear that an aggravation of a pre-existing condition
that results in increased pain but no anatomical change is not a compensable injury. See
Cunningham v. Goodyear Tire & Rubber Co., 811 S.W.2d 888, 891 (Tenn. 1991). "If a
work injury aggravates a pre-existing condition merely by increasing pain, but does not
otherwise 'injure or advance the severity' of the employee's condition the claimant did
not sustain an injury by accident within the meaning of the Workers' Compensation Act
and is not entitled to compensation." NPS Energy Serv., Inc. v Jernigan, (Tenn.
Workers' Comp. Panel Oct. 4, 2001) (quoting Cunningham, 811 S.W.2d at 891).

       On two occasions, Dr. Jeansonne opined that Mr. Taylor's incident at work
exacerbated his pre-existing arthritis. Dr. Jeansonne opined Mr. Taylor's arthritic
condition was "likely related to his previous on-the-job injury." Objective tests revealed
degenerative, not acute, changes. Dr. Jeansonne opined Mr. Taylor's condition had

2
  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 I, 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." McCordv. Advantage Human Resourcing, No. 2014-06-0063,2015 TN Wrk. Comp. App. Bd.
LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

                                                          3
returned to baseline. However, Dr. Jeansonne did not opine that Mr. Taylor aggravated
his pre-existing condition or that the aggravation arose primarily from the incident on
May 26, 2015.        The AMA GUIDES TO THE EVALUATION OF PERMANENT
IMPAIRMENT 25, (6th ed. 2008) define "aggravation" and "exacerbation" as follows:"

Aggravation is a circumstance or event that permanently worsens a preexisting or
underlying condition. The terms exacerbation, recurrence, or flare-up generally imply
worsening of a condition temporarily, which subsequently returns to baseline.
Exacerbation does not equal aggravation."

        The Court finds Mr. Taylor suffered only an exacerbation and not an aggravation
of his pre-existing arthritic condition when his knee popped on May 26, 2015. According
to Dr. Jeansonne, Mr. Taylor's pre-existing left--leg condition returned to baseline.
Under these circumstances, the Court finds Mr. Taylor is unlikely to prevail at a hearing
on the merits. His request for medical and temporary disability benefits is denied. 3

IT IS, THEREFORE, ORDERED as follows:

       1. Mr. Taylor's claim against Kingsport for the requested additional medical benefits
          and temporary disability benefits is denied.

       2. This matter is set for an Initial (Scheduling) Hearing on November 12, 2015, at
          10:00 a.m. Eastern time.

           ENTERED this the 25th day of September, 2015.



                                               Judge Brian K. Addmgt
                                               Court of Workers' Compensation Claims


Initial (Scheduling) Hearing:

      A Scheduling Hearing has been set with Judge Brian K. Addington, Court of
Workers' Compensation Claims. You must call 865-594-6538 or toll-free at 855-
543-5044 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).

3
    The Court's ruling has no effect on the open medical provision of Mr. Taylor's prior work-injury settlement.

                                                            4
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 lndigency 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
      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.


                                            5
     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
        three 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 three 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.

                              CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order
 Denying Additional Medical and Temporary Disability Benefits was sent to the following
 recipients by the following methods of service on this the 25th day of September, 20 15.


Name                  Certified   First   Via   Fax    Via         Email/Mail Address
                      Mail        Class   Fax   Number Email
                                  Mail
Darryl Taylor            X          X                              2275 Chimney Top Loop
                                                                   Fall Branch, TN 37656
Mike Billingsley,                                           X      biJJingslev(mkingSQOrttn.gov
Employer's
Counsel




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




                                                6
                                              APPENDIX

Exhibits:
   1. Affidavit of Darryl Taylor, July 14, 2015
   2. Choice ofPhysicians, May 27, 2015
   3. Wage Statement, July 21,2015
   4. First Report of Injury, May 26,2015
   5. Notice of Denial, May 26, 2015, and June 8, 2015
   6. Medical Records, Dr. Gregory Jeansonne

Technical record:i
   1. Petition for Benefit Determination, June 15, 2015
   2. Dispute Certification Notice, August 7, 2015
   3. Request for Expedited Hearing, August 19, 20 15


i 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.




                                                      7
