             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

Katlyn N. McLaurin                              ) Docket No. 2017-03-1133
                                                )
v.                                              ) State File No. 69883-2017
                                                )
AT&T Services, LLC, et al.                      )
                                                )
                                                )
Appeal from the Court of Workers’               )
Compensation Claims                             )
Lisa A. Lowe, Judge                             )

                     Affirmed and Remanded – Filed May 29, 2018

In this interlocutory appeal, the trial court determined the employee had come forward
with sufficient evidence to show a likelihood of prevailing at trial in establishing
entitlement to temporary disability benefits arising from a work-related mental injury.
The employer appealed, asserting the employee failed to meet her burden of proof at the
expedited hearing. In response, the employee asks that we find this appeal frivolous and
award attorneys’ fees. We affirm the decision of the trial court, find the appeal is not
frivolous, and remand the case for further proceedings.

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge David F. Hensley joined.

W. Troy Hart, Knoxville, Tennessee, for the employer-appellant, AT&T Services, LLC

Timothy Roberto, Knoxville, Tennessee, for the employee-appellee, Katlyn N. McLaurin

                           Factual and Procedural Background

        Katlyn McLaurin (“Employee”), a resident of Knox County, Tennessee, worked
for AT&T Services, LLC/Direct TV (“Employer”) as an installation technician. 1 On
September 8, 2017, Employee was dispatched to a customer’s residence for an
installation job. When the customer opened the door, he pointed a gun at Employee and,
using threatening and profane language, demanded she leave his property immediately.

1
  In the record, Employer is alternately referred to as “AT&T,” “Direct TV, LLC,” “AT&T Services,
Inc.,” “Direct TV,” and “AT&T Services, LLC.”
                                               1
Employee ran back to her vehicle and drove away from the residence. She contacted
Employer and reported the confrontation. Thereafter, she contacted the Knox County
Sheriff’s office, which sent an officer to take Employee’s statement and write a report.

       The following day, apparently in response to Employee’s request for medical
treatment, Employer instructed Employee to seek treatment from her primary care
physician. Following her visit to Halls Family Physicians, Employee was provided a
panel of physicians from which she selected the University of Tennessee Medical Center
(“UT Medical Center”). On September 12, 2017, the UT Medical Center physician
diagnosed Employee with post-traumatic stress disorder (“PTSD”) and referred her to
Cherokee Health. There, she was seen and treated by Dr. Jenny Macfie, a clinical
psychologist. Dr. Macfie also diagnosed PTSD and restricted Employee from working.

       On October 2, 2017, Employee was informed that her claim for workers’
compensation benefits had been denied as of September 28, 2017. Thereafter, however,
Employer completed additional investigation and agreed to accept Employee’s claim as
compensable. An Agreed Order was entered on December 8, 2017, reflecting
Employer’s agreement to authorize reasonable and necessary medical treatment for
Employee’s work-related condition. This order left unresolved the issue of temporary
disability benefits.

       In response to Employee’s request for an expedited hearing, in which she sought a
decision on the record without an evidentiary hearing, Employer indicated it had no
objection to an on-the-record determination. Employer further asserted that Employee
had not met her burden of proving entitlement to temporary disability benefits because
the provider who took Employee out of work was not a physician.

       On March 1, 2018, Employee submitted a “supplemental brief” in support of her
request for expedited hearing and included as an exhibit a response from Dr. John
Robertson, the authorized physician who saw Employee after Employer agreed to
authorize medical treatment. In his response to Employee’s counsel’s inquiry, Dr.
Robertson indicated as follows: (1) he agreed Employee had suffered a psychological
injury; (2) he agreed with the psychologist’s recommendation that Employee not return to
work after the incident; and (3) he believed Employee should remain off work due to her
PTSD from the date of the incident “until further notice” from his office.

       In response to Employee’s supplemental brief and exhibits, Employer argued that
Employee “woefully fail[ed] to meet her burden of proof under the statute in order to
demonstrate she is entitled to temporary total disability benefits.” Employer asserted that
some providers had indicated Employee was capable of returning to work and that the
inquiry to Dr. Robertson was “either poorly drafted or intentionally calculated to provide
misleading information to the ATP.” Specifically, Employer argued: (1) that Dr.
Robertson’s opinion was based in part on an opinion from a psychologist, who was not

                                            2
legally competent to offer an opinion on “disability and causation”; and (2) the October
25, 2017 medical note from Cherokee Health indicated Employee was capable of
returning to work as of November 1, 2017, thereby rendering the information contained
in the letter to Dr. Robertson inaccurate.

       In its order resolving Employee’s request for expedited hearing, the trial court
acknowledged the conflicting information regarding Employee’s ability to return to work.
However, the trial court also noted that the October 25 note from Cherokee Health, on
which Employer relied, was electronically signed by an individual “with no identification
of his qualifications, the care he was providing, or for which condition he provided the
care.” The trial court also noted that Dr. Robertson’s responses to questions 1 and 3,
without considering the arguably inaccurate or incomplete information in question 2,
were sufficient to support Employee’s claim for temporary benefits, especially in light of
the lesser standard of proof at an expedited hearing. 2 As a result, the trial court
concluded Employee had come forward with sufficient evidence to indicate she was
likely to prevail at trial in her claim for temporary disability benefits, and it ordered
Employer to pay both past and on-going temporary disability benefits in accordance with
the Workers’ Compensation Law. Employer has 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) (2017). 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 (2017).



2
  Question 1 asked whether Dr. Robertson agreed that Employee “suffered psychological injury caused by
her being threatened at gun point while performing her job duties.” Question 3 asked whether Employee
“should be restricted from work due to work-related PTSD from September 8, 2017 until further notice
from your office.” Dr. Robertson responded in the affirmative to both questions.
                                                  3
                                        Analysis

       It is well-settled that an injured worker may be eligible for temporary disability
benefits if: (1) the worker became disabled from working due to a compensable injury;
(2) there is a causal connection between the injury and the inability to work; and (3) the
worker established the duration of the period of disability. Watson v. Labor Smart, No.
2015-06-1358, 2017 TN Wrk. Comp. App. Bd. LEXIS 13, at *14-15 (Tenn. Workers’
Comp. App. Bd. Feb. 3, 2017).

        In contesting Employee’s claim for temporary disability benefits, Employer argues
that the opinion of a clinical psychologist is insufficient to support an award of such
benefits. As a result, Employer asserts, Dr. Robertson’s opinion is flawed because he
relied, in part, on the statements and records of Dr. Macfie, a psychologist, and other
providers at Cherokee Health.

        The Tennessee Supreme Court’s Special Workers’ Compensation Appeals Panel
addressed this issue in Selby v. Highways, Inc., No. M2002-00340-WC-R3-CV, 2003
Tenn. LEXIS 413 (Tenn. Workers’ Comp. Panel May 15, 2003). In Selby, the employee
sought benefits for an alleged psychological injury at work arising from co-workers’
abusive conduct toward him. Id. at *3-4. As part of his proof at trial, the employee
presented testimony from several experts, including a clinical psychologist, who offered
opinions not only as to the cause and permanency of the employee’s psychological
condition, but also as to the date the employee reached maximum medical improvement.
Id. at *9-10. In addressing the employer’s argument on appeal, the Panel noted that a
trial court “cannot base a finding of causation solely upon the opinion of a psychologist.”
Id. at *12. The court also concluded, however, that “this does not . . . completely exclude
the testimony of such a witness.” Id. The Panel then noted that the trial court also
considered the testimony of the employee and a psychiatrist in making its determination,
which the Panel affirmed on appeal. Id. at *13; see also Skelton v. Robert Shaw Controls
Co., No. 01S01-9710-CC-00229, 1998 Tenn. LEXIS 609, at *17-18 (Tenn. Workers’
Comp. Panel Oct. 26, 1998) (testimony from a clinical psychologist is competent in a
workers’ compensation case, but such testimony cannot support a finding of causation or
permanent medical impairment); Creasman v. Waves, Inc., No. 2017-05-0843, 2018 TN
Wrk. Comp. App. Bd. LEXIS 13, at *11 n.1 (Tenn. Workers’ Comp. App. Bd. Apr. 16,
2018) (“While psychologists may be treating providers in some circumstances, . . . only a
physician may render a causation opinion.”).

       In Ball v. North Am. Royalties, No. 03S01-9411-CV-00112, 1995 Tenn. LEXIS
545 (Tenn. Workers’ Comp. Panel Sept. 15, 1995), an injured employee was treated for
both orthopedic injuries and psychological injuries. The orthopedic physician placed the
employee at maximum medical improvement six months after the work injury, but
acknowledged he did not consider the employee’s psychological status at the time he
made that determination. Id. at *4. A clinical psychologist also offered testimony as to

                                            4
the employee’s mental status and behavioral impairment, as well as his ability to return to
work. Id. at *3. The trial court accepted the testimony of the orthopedic physician as to
the date of maximum medical improvement and concluded the employer had overpaid
temporary benefits for fifty weeks after the date of maximum medical improvement as
found by the orthopedic physician. Id. at *4. On appeal, however, the Panel reversed
that finding, concluding the employer knowingly paid temporary benefits after the date
the employee was placed at maximum medical improvement because he was still
temporarily disabled during the course of his psychological treatment. Id. Thus,
although a psychologist is not competent to offer testimony concerning medical causation
and the permanency of any impairment, such testimony may be relevant to a trial court’s
determination of an employee’s ability to return to work as it relates to his or her
entitlement to temporary disability benefits.

        In the present case, as in Selby, the trial court considered not only the records of
the clinical psychologist, Dr. Macfie, but also the employee’s testimony by affidavit and
the records of Dr. John Robertson, Employee’s authorized treating physician. The trial
court further acknowledged and considered that the written inquiry to Dr. Robertson had
arguably incorrect or incomplete information in one of its questions, but that Dr.
Robertson’s responses to the other questions were sufficiently reliable to support an
award of temporary disability benefits at this interlocutory stage of the case. Under the
circumstances, we conclude the evidence does not preponderate against the trial court’s
determination that Employee is likely to prevail at trial in establishing her claim for
temporary disability benefits. We therefore affirm the trial court’s finding on this issue.

       Finally, after carefully reviewing the record, we conclude this appeal is not
frivolous, and we deny Employee’s request for attorneys’ fees arising from the appeal.

                                       Conclusion

        Based on the foregoing, we affirm the trial court’s order, deny Employee’s request
for attorneys’ fees for a frivolous appeal, and remand this case for further proceedings.




                                             5
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Katlyn N. McLaurin                                         )   Docket No. 2017-03-1133
                                                           )
v.                                                         )    State File No. 69883-2017
                                                           )
AT&T Services, LLC, et al.                                 )
                                                           )
                                                           )
Appeal from the Court of Workers’                          )
Compensation Claims                                        )
Lisa A. Lowe, 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 29th day of May, 2018.
 Name                    Certified   First   Class   Via   Fax       Via     Sent to:
                         Mail        Mail            Fax   Number    Email

 Timothy Roberto                                                       X     troberto@brownandroberto.com
 W. Troy Hart                                                          X     wth@mijs.com
 Lisa A. Lowe, Judge                                                   X     Via Electronic Mail
 Kenneth M. Switzer,                                                   X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                   X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
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
