                                                                                      FILED
                                                                                   Mar 27,2018
                                                                                   03:08 PM(ET)
                                                                                 TENNESSEE COliRT OF
                                                                                WORKERS' COMPENSATION
                                                                                       CLAIMS




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

Jeff Hornal,                                    )   Docket No. 2017-05-1189
               Employee,                        )
v.                                              )
Thunder Ridge Transport, Inc.,                  )   State File No. 47830-2017
            Employer,                           )
And                                             )
Liberty Insurance Corporation,                  )   Judge Thomas Wyatt
            Carrier.                            )


      EXPEDITED HEARING ORDER FOR MEDICAL AND TEMPORARY
                      DISABILITY BENEFITS


       This claim carne before the Court on March 21,2018, on JeffHomal's Request for
Expedited Hearing. Mr. Homal sought medical and temporary disability benefits, raising
the central issue of whether he would likely prevail at a hearing on the merits in
establishing that his right-knee injury arose primarily out of and in the course and scope
of employment. For the reasons set forth below, the Court holds Mr. Hornallikely to
prevail at a hearing on the merits and awards Mr. Homal medical benefits and some of
the requested temporary disability benefits.

                                       History of Claim

       Thunder Ridge Transport, Inc. hired Mr. Hornal as a truck driver in November
2016. He consistently worked six days per week before the date of his injury and did not
experience right-knee pain in performing his duties.

      Mr. Homal'sjob included pushing heavy carts of mail into and out of a truck. On
June 19, 2017 a wheel of a cart became stuck, causing him to abruptly stop his stride.
When this occurred, Mr. Hornal's right knee "popped" and became painful. He reported
his injury the next day, and Thunder Ridge authorized him to seek emergent care at
Centennial Medical Center.


                                            1
       Mr. Homal told providers at Centennial that he injured his right knee at work
                       1
while pushing a cart. He denied previous musculoskeletal conditions. Following an x-
ray, the emergency physician dismissed Mr. Hornal with crutches and diagnosed arthritis
and joint effusion in the right knee.

       Mr. Hornal saw Dr. Chris Kromer for authorized treatment on June 28. Dr.
Kromer ordered an MRI of the right knee, which revealed a torn meniscus and arthritis.
Dr. Kromer placed him on restricted duty and prescribed orthopedic care. Thunder Ridge
provided a panel, and Mr. Hornal selected Dr. Allen Anderson. He did not work in the
interim between seeing Drs. Kromer and Anderson.

       Mr. Hornal saw Dr. Anderson on July 7. After reviewing the diagnostic studies,
he assessed Mr. Hornal with "a constellation of problems, which are severe. He has
recently had a torn meniscus. Secondly, he has preexisting chondral problems or
degenerative changes in the medial side of his knee and a varus deformity." Dr.
Anderson injected Mr. Hornal's knee but noted his treatment options included knee
replacement. Dr. Anderson prescribed medication and a knee brace, which Mr. Hornal
currently uses. Dr. Anderson addressed his return to work on and after July 7 with the
following note: "Unable to work till: Follow Up appointment."

        Mr. Hornal did not work between July 7 and his next appointment with Dr.
Anderson of September 29. Dr. Anderson did not note following the second visit that he
took Mr. Hornal off work or placed restrictions on his activities. However, Mr. Hornal
testified that he did not return to work because his right-knee pain prevented him from
performing his duties at Thunder Ridge. Mr. Hornal stayed out of work until January 4,
when he took a less strenuous, lower-paying truck-driving job for another company.

       Returning to his treatment with Dr. Anderson, the carrier's adjuster emailed Dr.
Anderson the following inquiry on October 5, 2017: "You mentioned in your report that
JeffHornal ... has varus deformity and chondral problems which are sever [sic] as well
as a torn meniscus. Is the primary cause of his current disability over 51% due to the
work injury?" Dr. Anderson responded by checking the "No" option without further
explanation.

      Mr. Hornal testified that Thunder Ridge "shut everything down" after receiving
Dr. Anderson' s response. He stated that Thunder Ridge did not authorize further care
with Dr. Anderson, nor did it pay for the emergency visit to Centennial. Mr. Hornal also



1
    All other providers whom Mr. Homal saw for his right-knee injury recorded a similar history of injury.
2
 Dr. Anderson is now deceased, but Thunder Ridge has not offered Mr. Hornal another panel despite the
doctor's passing.

                                                      2
asserted that Thunder Ridge did not pay temporary disability benefits from June 20,
2017, to January 3, 2018.

       After Thunder Ridge's denial of his claim, Mr. Homal consulted an unauthorized
orthopedist, Dr. James Wiesman. Dr. Wiesman recorded that Mr. Homal was "adamant"
that he never experienced right-knee pain before suffering the injury at Thunder Ridge.
Dr. Wiesman diagnosed a tear of the medial meniscus and arthritic changes in his right
knee. Based on Mr. Homal's history, Dr. Wiesman stated, "[i]n my opinion the problem
that Mr. Homal is having with his right knee at this time is greater than 51%3 due to the
work injury that occurred on 6-20-17."

        In a later affidavit, Dr. Wiesman stated, "it is my opinion the injury i.e. meniscus
tear, arose primarily out of and in the course and scope of his employment when his right
knee 'popped' while pushing a cart full of mail as described on or about 6/20/17." Dr.
Weisman also stated, "[t]o the extent that the abnormal condition of his right knee is an
aggravation of a preexisting condition, it is my opinion that the aggravation of his
preexisting condition arose primarily out of and in the course and scope of his opinion as
described above." Dr. Wiesman recommended an arthroscopic meniscectomy.

                              Findings of Fact and Conclusions of Law

       Mr. Homal has the burden of proof on the essential elements of his claim. Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
20 15). However, at an expedited hearing, he can establish his eligibility for benefits by
coming forward with evidence from which the Court can determine he is likely to prevail
at a hearing on the merits in establishing entitlement to benefits. McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       To obtain an interlocutory order for benefits, Mr. Homal must show he will likely
prevail at a hearing on the merits in establishing that he suffered an injury "arising
primarily out of and in the course and scope of employment[.]" Tenn. Code Ann. § 50-6-
102(14)(A) (2017). If his injury involves an aggravation of a preexisting condition, he
must show under the same standard ''that the aggravation arose primarily out of and in
the course and scope of employment." /d.

      Under Tennessee Workers' Compensation Law, "[a]n 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). Mr. Homal must satisfy the expedited-hearing burden of proof in

3
 The Court notes that both doctors applied the same incorrect percentage in considering the causation of
Mr. Homal's injury.

                                                   3
establishing the work-relatedness of any suggested treatment for his right-knee injury.
Tenn. Code Ann. § 50-6-102(14)(C).

        The Court holds that Mr. Homal carried his burden and, thus, is entitled to medical
benefits and some of the temporary disability benefits he sought. Thunder Ridge did not
challenge Mr. Homal's testimony that his right-knee problems began at work when his
knee popped while pushing a cart. The Court holds that Mr. Homal credibly testified on
both the mechanism of his injury and the fact that he suffered no previous right-knee
pain. Thus, at a hearing on the merits, Mr. Homal will likely prevail in establishing that
the injurious event at Thunder Ridge occurred and that he suffered no right-knee pain
until that event.

       The above ruling, however, does not end the Court's inquiry, because Mr. Homal
must also establish a causal relationship between his work injury and his need for medical
treatment. Mr. Homal introduced Dr. Wiesman's opinions into evidence, while Thunder
Ridge relied on Dr. Anderson's opinion, on this issue. Thus, the Court must weigh their
opinions to resolve the conflict between the parties.

       Because Mr. Homal selected Dr. Anderson from a panel, the law affords his
opinion a rebuttable presumption of correctness. Tenn. Code Ann. § 50-6-102(E). The
causation inquiry to which Dr. Anderson responded indicated his negative response to the
question of whether Mr. Homal's "disability was over 51% due to the work injury."
(Emphasis added.) This opinion leaves open for interpretation whether Dr. Anderson
would have answered the same way if the adjuster had inquired whether Mr. Homal's
injury arose primarily out of and in the course and scope of employment. Although
Thunder Ridge contends that Dr. Anderson's response would be the same, the Court is
unwilling to speculate on that point.

       On the other hand, instead of communicating his opinion by checking a box
without offering explanation, Dr. Wiesman provided extensive discussion rationalizing
his opinion that Mr. Homal's injury arose primarily out of and in the course and scope of
employment. He posited two bases underlying his causation opinion: (1) he felt the
absence of end-stage arthritis in Mr. Homal's right knee supported his opinion that the
recent work injury was the primary cause of his injury; and (2) he accepted the accuracy
of Mr. Homal's history that he did not experience right-knee pain before his injury at
Thunder Ridge.

       In view of the above, the Court holds that, at a hearing on the merits, Mr. Homal
will likely prevail in rebutting Dr. Anderson's unfavorable causation opinion by a
preponderance of the evidence. Dr. Anderson's opinion did not specifically address the
causation of Mr. Homal's injury, while Dr. Wiesman's opinion did. Further, the Court
credits the truthfulness of Mr. Homal's testimony that he did not experience right-knee
pain before the date of injury. Thus, the Court holds that Mr. Homal satisfied his

                                            4


                                                                                              •
requisite burden of proving the work-relatedness of his right-knee injury.

                                     Medical Benefits

        The ruling here entitles Mr. Homal to ongoing authorized medical treatment of his
right-knee injury. Because of Dr. Anderson's passing, Thunder Ridge shall promptly
offer a panel for Mr. Homal's selection of a new authorized treating orthopedist.

       As for the unpaid emergency room bill, the Court holds that Mr. Hornal will likely
prevail at a hearing on the merits in establishing the treatment he received at Centennial
constituted reasonable and necessary treatment of his right-knee injury. However,
because he did not introduce into evidence documentation of the amount charged, the
Court cannot at this time order that Thunder Ridge pay it. But, upon receiving proper
billing information, Thunder Ridge shall remit appropriate payment for Mr. Hornal's
emergent treatment at Centennial.

                              Temporary Disability Benefits

       Mr. Hornal seeks temporary total disability benefits from the date of injury until
he began his new job on January 4. He also seeks temporary partial disability benefits
since January 4 because he earns less in his new job.

        To receive temporary total disability benefits, an employee must prove (1) total
disability from working as the result of a compensable injury; (2) a causal connection
between the injury and the inability to work; and (3) the duration of the period of
disability. Shepherd v. Haren Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS
15, at *13 (Mar. 30, 2016). Specific to the issues here, the Workers' Compensation
Appeals Board held in Young v. Young Electric Co., 2016 1N Wrk. Comp. App. Bd.
LEXIS 41, at *12 (Sept. 14, 2016), that an employee must prove he has a disability
related to a work injury in order to recover temporary total disability benefits.

        Here, Dr. Anderson's initial visit report documented that he placed Mr. Homal off
work from the date of the visit, July 7, until the next treatment visit on September 29.
Since Dr. Anderson did not see Mr. Hornal for any condition other than his right-knee
injury, the Court holds that he will likely prevail at a hearing on the merits on entitlement
to temporary total disability from July 7 until September 29. Thus, the Court awards Mr.
Homal twelve weeks and one day of temporary total disability benefits at his
compensation rate of$526.07, which equates to $6,387.99.

       However, Mr. Hornal did not introduce into evidence proof of a work-related
disability after September 29. Further, he did not prove his earnings after January 4.
Consequently, the Court fmds, at this time, that Mr. Homal will not likely prevail in
establishing entitlement to temporary disability benefits after September 29.

                                             5
IT IS, THEREFORE, ORDERED as follows:

 I. Thunder Ridge shall promptly provide a panel of orthopedists for Mr. Homal's
    selection of an authorized treating physician for of his right-knee injury. Thunder
    Ridge shall promptly schedule an appointment with the selected physician.

 2. Upon receiving appropriate billing information, Thunder Ridge shall promptly pay
    all charges associated with the emergent care that Mr. Homal received at
    Centennial Medical Center

 3. Thunder Ridge shall pay $6,387.99 in temporary total disability benefits.

 4. This matter is set for a Status Hearing on May 21, 2018, at 1:00 p.m. Central
    Time/2:00p.m. Eastern Time. The parties must call (615) 741-3061 or toll-free
    at (855) 747-1721 to participate in the Status Hearing. Failure to call in may result
    in a determination of the issues without the parties' further participation.

 5. 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)
    (2017). The Insurer or Self-Insured Employer must submit confirmation of
    compliance      with    this     Order    to   the    Bureau     by    email     to
    WCCompliance.Program@ln.go 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.

 6. For questions regarding compliance, please contact the Workers' Compensation
    Compliance Unit via email WCCompliance.Program@tn.gov.


    ENTERED March 27,2018.




                                Judge Thomas Wyatt
                                Court of Workers' Compensation Claims




                                          6
                                        APPENDIX

 Exhibits: The Court admitted the following exhibits into evidence during the Expedited
 Hearing:

           1.   Affidavit of Jeff Hornal;
           2.   Affidavit of Dr. H. James Wiesman;
           3.   Records of Centennial Medical Center;
           4.   Records of Dr. Allen F. Anderson/Tennessee Orthopaedic Alliance;
           5.   Records of Dr. Chris Kromer/American Family Care;
           6.   Records of Dr. H. James Wiesman/Columbia Orthopaedic Clinic;
           7.   Records of Spring Hill Imaging Center;
           8.   Form C-42 Choice of Physician Form; and
           9.   Form C-41 Wage Statement.

 Technical record: The Court reviewed the following filings in considering the issues
 presented during the Expedited Hearing:

           1.   Petition for Benefit Determination;
           2.   Dispute Certification Notice;
           3.   Request for Expedited Hearing;
           4.   Notice of Expedited Hearing; and
           5.   Employer Position Statement.


                              CERTIFICATE OF SERVICE

         I 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 March 27,2018.

Name                   Certified Mail Via Email       Service sent to:

Richard Matthews,                             X       Rmatthews95@aol.com
Employee Attorney                                     Sdbarnes 1964@aol.com
Behnaz Sulkowski,                             X       Behnaz.sulkowski@libertymutual.
Employer Attorney                                     com
                                                      Erin.edgell@libertymutual.com




                                           PENN~CLERK ~
                                           wc.courtclerk@tn.gov

                                              7
                           Expectited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers'
Compensation Appeals Board. To appeal an expedited hearing order, you must:

    1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal," and file the
       form with the Clerk of the Court of Workers' Compensation Claims within seven
       business days of the date the expedited hearing order was filed. When filing the Notice
       of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau's
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten calendar days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten calendar days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers'
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within five
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within five business
      days after you file your position statement. All position statements 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.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
                                Tennessee Bureau of Workers' Compensation
                                       220 French Landing Drive, 1-B
                                         Nashville, TN 37243-1002
                                               800-332-2667

                                          AFFIDAVIT OF INDIGENCY


l,                                                , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: _ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - -

3. Telephone Number: - - - - - - - - -                   4. Date of Birth; _ __,___ _ _ _ _ _ __

5. Names and Ages of All Dependents:

        - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - -

        - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - -

        - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - -

        - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - -

6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - -

        My employer's address is: - - - - - - - - - - - -- -- - - - - - - - - -

        My employer's phone number is: - - - - - - - -- - - - - - - - - - - - - -

7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ __

B. I receive or expect to receive money from the following sources:

        AFDC            $            per month           beginning
        SSI             $            per month           beginning
        Retirement      $            per month           beginning
        Disability      $            per month           beginning
        Unemployment $               per month           beginning
        Worker's Comp.$              per month           beginning
        Other           $.           per month           beginning



LB-11 08 (REV 11/1 5)                                                                             RDA 11082
9. My expenses are:

        RenUHouse Payment $ _ __          per month     Medical/Dental $               per month

        Groceries       $           per month           Telephone       $              per month
        Electricity     $           per month           School Supplies $              per month
        Water           $           per month           Clothing        $              per month
        Gas             $           per month           Child Care      $              per month
        Transportation $            per month           Child Support   $              per month
        Car             $            per month
        Other           $           per month (describe:


10. Assets:

        Automobile              $ _ _ _ __
                                                        (FMV) - - - - - - - - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ __
                                                        (FMV) - - - - - - - ' - - - - - -·
        Other                   $ _ _ __                Desqrili'let _ _ _ _ _ _ _ _ __

11. My debts are:

        Amount Owed                     To Whom




       ------------


I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.



APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ day of - - - - - - - - - - - · 20_ __



NOTARY PUBLIC

My Commission Expires: _ _ _ _ _ _ __




LB-11 08 (REV 11/15)                                                                          RDA I 1082
