                                                                                                      FILED

                                                                                                  TNCOURTOF
                                                                                           l\ ORKE.RS' CO:MFE.NSATION
                                                                                                        'ClAI1!.lS



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

Willis Ray Babb,                                        ) Docket No.: 2016-03-0095
            Employee,                                   )
v.                                                      )
House Hasson Hardware Co., Inc.,                        ) State File No.: 88593-2015
           Employer,                                    )
and                                                     )
American Zurich Insurance Co.,                          ) Judge Pamela B. Johnson
           Carrier.                                     )


                                 EXPEDITED HEARING ORDER
                                    (Decision on the Record)


      This matter came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by Willis Ray Babb pursuant to Tennessee Code
Annotated section 50-6-239 (2016). The parties submitted an Agreed Order Waiving In-
person Hearing and Allowing Court to Make Decision upon Review of the File. The
Court entered an Agreed Order and Docketing Notice on December 6, 2016, listing the
documents agreed upon by the parties to for consideration. 1

       Upon review of this documentation, the Court finds it needs no additional
information to determine whether Mr. Babb is likely to prevail at a hearing on the merits
of the claim. Accordingly, pursuant to Tennessee Compilation Rules and Regulations
0800-02-21-.14(1)(c) (2016), the Court decides this matter upon review of the agreed
documents.

        The central legal issue is whether Mr. Babb is likely to prevail at a hearing on the
merits in establishing that he suffered a left-knee injury arising primarily out of and in the
course and scope of his employment with House Hasson, entitling him to medical
benefits. For the reasons set forth below, the Court holds Mr. Babb came forward with
sufficient evidence demonstrating he is likely to prevail at a hearing on the merits. Thus,
1
 Attached to this Order is a complete listing of the Technical Record and Exhibits agreed upon by the parties for
consideration by this Court.
    this Court concludes Mr. Babb is entitled to a panel of physicians in accordance with
    Tennessee Code Annotated section 50-6-204 (20 16) for evaluation and treatment of his
    left-knee injury.

                                                History of Claim

        A review of the written materials revealed the following facts. Mr. Babb, a forty-
six-year-old resident of Knox County, Tennessee, worked for House Hasson as a truck
driver/deliveryman. (T.R. 1, 3; Ex. 1.) On October 12, 2015, Mr. Babb made a delivery
to Double J Supply in Lagrange, Georgia, and injured and broke two toes when a pallet-
jack fell on his left foot. (Ex. 1.; Ex. 2, pp. 15-19.) On the same day, he reported the foot
injury to his supervisor, Stacy Merrell. Id.

        Upon his return home, Mr. Babb sought medical care at an urgent care facility.
(Ex. 1; Ex. 2, pp. 20-22.) The urgent care provider instructed Mr. Babb to stay off the
foot. !d. Mr. Babb took. a week off work to heal. !d. House Hasson accepted the left-
foot injury as compensable and provided authorized medical treatment. !d.

       When Mr. Babb returned to work following his foot injury, he experienced pain in
his left knee on his first delivery that day. (Ex. 1; Ex. 2, pp. 22-24.) He initially
associated his knee pain with the change in his walk as he tried to avoid placing weight
on his left foot and hoped his knee pain would subside as his foot healed. (Ex. 1; Ex. 2,
pp. 76-77; Ex. 3, p. 7-8.) He mentioned pain in his knee to Mr. Merrell during the week
he returned following his toe injury. (Ex. 2, p. 53; Ex. 4, p. 5, 7.) During a Driver's
Meeting in December, Mr. Babb advised Mr. Merrell that his knee continued to bother
him. Id.

        During this time, Mr. Babb was scheduled to see his primary care physician, Dr.
Brad Flaming, for unrelated health conditions. (Ex. 2, pp. 54-55.) On December 4, Dr.
Flaming noted that Mr. Babb complained of bilateral knee pain, with left-knee pain for
six to eight months and right knee pain for three to four months, and further noted no fall
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or known injury. (Ex. 7.) Mr. Babb testified he told Dr. Flaming about the pallet-jack
incident and how he thought his gait following the toe injury may have caused his left-
knee pain, but he could not explain what Dr. Flaming meant by no fall or known injury.
(Ex. 2, pp. 55, 59.) Dr. Flaming obtained x-rays and diagnosed left-knee tendinitis. (Ex.
7.)
       Mr. Babb returned to see Dr. Flaming on December 29 with continued knee pain
as well as other unrelated complaints. (Ex. 7.) During the office visit, Dr. Flaming
administered a cortisone injection into the knee. ld. Dr. Flaming diagnosed pain in both


2
  Mr. Babb testified that he called Dr. Flaming's office and reported the discrepancy in the history concerning the
onset of his symptoms. (Ex. 2, p. 56-58.) He testified Dr. Flaming's office corrected the time line. The correction is
located at the end of the December 29, 2015 office note contained in Exhibit 7.

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    knees and osteoarthritis of the knee. 3 !d. Dr. Flaming further noted he reviewed an old
    x-ray, which showed "degenerative changes in the knee." 4

       Mr. Babb's left-knee pain failed to improve and he subsequently developed
buckling in his knee. In his affidavit, Mr. Babb stated, on January 8, 2016, he realized
that he seriously injured his left knee when it could no longer hold his bodyweight and
buckled underneath him. (Ex. 1.) In his deposition, Mr. Babb stated, on the Tuesday
night/Wednesday morning following a left-knee cortisone injection from Dr. Flaming, he
stepped up on a pallet at his first stop and his left knee buckled. (Ex. 2, pp. 30-40.)

        By affidavit, he indicated he informed Mr. Merrell the following day that he
needed to see a doctor about his left-knee injury. (Ex. 1; Ex. 2, pp. 39-41.) By
deposition, he testified he talked to Mr. Merrell on the following Sunday to request
medical treatment for his knee. (Ex. 2, pp. 37-41.) Mr. Babb testified he did not discuss
specifics about his knee with Mr. Merrell during the Sunday telephone conversation
because "[Mr. Merrell] already knew I had something wrong with my knee." (Ex. 2, p.
44, 53.)      Mr. Babb explained in his deposition that following the Tuesday
night/Wednesday morning left-knee buckling event, he was at home on Friday, seated in
the floor, and "It was just a lot of pain. Because I was just trying to get up and I actually
put weight on it." (Ex. 2, pp. 50-51.)

      Dr. Flaming subsequently ordered a left-knee MRI, which Mr. Babb completed on
January 28. (Ex. 7.) Dr. Daniel A. Baker interpreted the MRI, which showed a medial
meniscus tear, moderate to severe chondromalacia, and moderate joint effusion with
numerous loose bodies present. !d.

       Following the MRI, Mr. Babb returned to Dr. Flaming on February 8 for an
unrelated health condition. (Ex. 7.) During this visit, Mr. Babb requested a return to
work despite his left-knee meniscal tear found on the MRI. !d. Dr. Flaming agreed to
release Mr. Babb back to work despite the tear. !d.

       On April 4, House Hasson's carrier issued a Notice of Denial of Claim for
CoJnpensation noting, "The right knee condition complaints are not causally related to
the comp nsable injuries sustained to the righl 2nd and 3 rd toes claim." 5 (Ex. 8.)




3
  The December 29, 2015 office note does not specify the involved knee with the "osteoarthritis of knee" diagnosis.
4
  The December 29, 2015 office note does not specify the involved knee when discussing the "old x-ray" and the
"degenerative changes in the knee" shown.
5
  For purposes of this Order, the Court presumes House Hasson meant to reference a "left" knee condition, which is
the disputed issue in this case, when it mistakenly re ferenced a "righl knee condition" and "compensable injuries
sustained to the right 2"d and 3rd toes claim" in its Nolie of Denial of Compensation.

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                        Findings of Fact and Conclusions of Law

       The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Mr. Babb must come forward with sufficient evidence from
which this Court might determine he is likely to prevail at a hearing on the merits. !d.;
Tenn. Code Ann. § 50-6-239(d)(l) (2016). This lesser evidentiary standard does not
relieve Mr. Babb 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. Car/ex Glass Co., No. 2015-01-0012,
2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept.
29, 2015).

       With the above principles in mind, an injury must arise primarily out of and occur
in the course and scope of the employment to be compensable under the Workers'
Compensation Law. See Tenn. Code Ann. § 50-6-102(14) (2016). The term "injury" is
defined as "an injury by accident ... arising primarily out of and in the course and scope
of employment, that causes death, disablement or the need for medical treatment of the
employee." !d. For an injury to be accidental, it must be "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(14)(A) (2016).

        In the present case, Mr. Babb identified a specific incident, or set of incidents,
identifiable by time and place that occurred while he performed his job duties at House
Hasson. On October 12, 2015, Mr. Babb made a delivery to Double J Supply in
Lagrange, Georgia, and broke two toes when a pallet-jack fell on his left foot. When Mr.
Babb returned to work following his foot injury, he experienced pain in his left knee on
his first delivery that day. He initially associated his knee pain with the change in his
walk as he tried to avoid placing weight on his left foot and hoped his knee pain would
subside as his foot healed. Mr. Babb's knee pain failed to improve and he subsequently
developed buckling in his knee. On the Tuesday night/Wednesday morning following a
cortisone injection from Dr. Flaming, he stepped up on a pallet at his first stop in
Samson, Alabama, and his knee buckled. This Court finds Mr. Babb came forward with
sufficient evidence from which this Court can determine that he is likely to prevail at a
hearing on the merits on establishing a specific incident, or set of incidents, identifiable
by time and place.

       The issue then turns to whether Mr. Babb's left-knee injury arose primarily out of
and in the course and scope of employment. In McCord, the Workers' Compensation
Appeals Board analyzed the burden of proof required at the Expedited Hearing stage and
concluded:


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        We find, therefore, that an employee need not prove each and every
       element of his or her claim by a preponderance of the evidence at an
       expedited hearing to be entitled to temporary disability or medical benefits,
       but must instead present evidence sufficient for the trial court to conclude
       that the employee would likely prevail at a hearing on the merits in
       accordance with the express terms of section 50-6-239(d)(l). A contrary
       rule would require many injured workers to seek out, obtain, and pay for a
       medical evaluation or treatment before his or her employer would have any
       obligation to provide medical benefits. The delays inherent in such an
       approach, not to mention the cost barrier for many workers, would be
       inconsistent with a fair, expeditious, and efficient workers' compensation
       system. See Tenn. Code Ann. § 4-3-1409(b)(2)(A) (2014). Moreover, we
       note that since an expedited hearing is interlocutory in nature, either party
       may present additional evidence at the final compensation hearing and ask
       the trial court to reverse or modify the interlocutory order.

!d. at *4.

       In McCord, the Workers' Compensation Appeals Board further analyzed what act
or event triggers an employer's responsibility to provide a panel of physicians.
Specifically, the Workers' Compensation Appeals Board held, "[M]ere notice of an
alleged workplace accident, in and of itself, does not trigger an employer's duty to
provide medical benefits in every case, without regard to the particular circumstances
presented." !d. at *7. The employee offered testimony without contradiction that she felt
symptoms while lifting boxes, which resulted in two emergency room visits with similar
complaints, and a report of injury to the employer. !d. at * 15-17. The Appeals Board
concluded in McCord, "Employee's testimony, the exhibits, and the record as a whole
support[ed] the trial court's determination that Employee [was] entitled to a panel of
physicians."

        Here, this Court must determine whether Mr. Babb is likely to prevail at a hearing
on the merits on the issue of entitlement to medical benefits, specifically a panel of
physicians. Mr. Babb testified he felt left-knee pain as soon as he returned to work
following his October 12, 2015 left foot incident. He further indicated he reported his
knee symptoms to his supervisor, Mr. Merrell, who confirmed learning of the knee pain
at that time. Both Mr. Babb and Mr. Merrell attributed Mr. Babb's knee pain to his
irregular gait due to his attempt to avoid or limit weight bearing on his injured foot. Mr.
Babb continued to experience knee pain and mentioned his knee complaints to Dr.
Flaming in December. Mr. Babb testified his knee buckled when he stepped on a pallet
the Tuesday night/Wednesday morning after Dr. Flaming administered a cortisone
InJection. Following this incident, Mr. Babb requested medical treatment from his
supervisor, Mr. Merrell, who again confirmed the report of a knee incident and request
for medical treatment. Considering the testimony of Mr. Babb and Mr. Merrell and the

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evidence as a whole, this Court holds that Mr. Babb presented sufficient evidence
demonstrating that his is likely to prevail at a hearing on the merits on entitlement to a
panel of orthopedic physicians. Accordingly, his request for medical benefits is granted
at this time.

IT IS, THEREFORE, ORDERED as follows:

    1. House Hasson shall provide Mr. Babb with medical treatment for his left foot and
       left knee injuries made reasonably necessary by the October 12, 2015 injury and in
       accordance with Tennessee Code Annotated section 50-6-204 (20 15). House
       Hasson shall provide Mr. Babb with a panel of orthopedic physicians from which
       he may select an authorized treating physician.

   2. This matter is set for a Scheduling Hearing on February 17, 2017, at 9:30 a.m.
      Eastern Time. The parties must call 865-594-0091or 855-543-5041 toll free to
      participate in the Initial Hearing. Failure to appear by telephone may result in a
      determination of the issues without your further participation.

   3. 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)
      (2015). The Insurer or Self-Insured Employer must submit confirmation of
      compliance      with    this     Order    to    the   Bureau     by     email     to
      WCCompliance.Progtam@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. For
      questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit by email at WCCompliance.Program@tn.gov or by telephone at
      (615) 253-1471 or (615) 532-1309.

      ENTERED this the 22nd day of December, 2016.




                                        HON. PAMELA B. JOHNSON
                                        Workers' Compensation Judge

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:

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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 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


                                         7
       statement of the issue(s) presented for review; and (4) an argument, citing
       appropriate statutes, case law, or other authority.


                                     APPENDIX

Technical Record:
   • Petition for Benefit Determination, filed February 1, 2016;
   • Petition for Benefit Determination, filed June 16, 2016;
   • Dispute Certification Notice, filed September 28, 2016;
   • Notice of Written Objection to Contents of Dispute Certification Notice and
      Inclusion of Identification of Other Issues to be Addressed by the Judge, filed
      September 28, 2016;
   • Request for Expedited Hearing, filed October 3, 2016;
   • Brief in Support of Employee's Request for Expedited Hearing, filed October 3,
      2016;
   • Position Statement in Opposition to Employee's Request for Expedited Hearing,
      filed October 4, 2016;
   • Subpoena, filed November 10, 2016; and
   • Agreed Order Waiving Inperson Hearing and Allowing Court to Make Review-of-
      the-File Determination, filed November 21, 2016;
   • Agreed Order, entered December 5, 2016;
   • Agreed Order and Docketing Notice for a Review-of-the-File Determination,
      entered December 6, 20 16; and
  • Agreed Order, entered December 8, 2016.

       The Court did not consider attachments to Technical Record filings unless the
parties or their counsel stipulated to their admissibility and listed them below as an
Exhibit. The Court considered factual statements in these filings or any attachments to
them as allegations unless established by the evidence.

Exhibits:
   • EXHIBIT 1: Affidavit of Willis Ray Babb;
   • EXHIBIT 2: Deposition and attached Exhibits of Willis Ray Babb;
   • EXHIBIT 3: Declaration and attached Exhibits of Stacy Merrell;
   • EXHIBIT 4: Deposition of Stacy Merrell;
   • EXHIBIT 5: Affidavit and attached Exhibits of Barbara Martinez;
   • EXHIBIT 6: Declaration and attached Exhibits of Betty Kidd;
   • EXHIBIT 7: Medical Records of Dr. Brad Flaming, Emory Family Practice, for
      dates of service: December 4, 2015; December 29, 2015; MRI of January 28,
      2016; and February 8, 2016; and
   • EXHIBIT 8: Notice ofDenial of Claim for Compensation, Form C-23.
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                            CERTIFICATE OF SERVICE

       I hereby 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 this the 22nd day
of December, 2016.

Name                        Certified Via       Via      Service sent to:
                            Mail      Fax       Email
Timothy Roberto, Esq.,                            X      troberto@brownandroberto.com
Employee's Counsel
Brett Burrow, Esq.,                               X      bburrow@butTowlee.com
Employer's Counsel




                                                       NY SHRUM, Court Clerk
                                                      WC.CourtClerl<@tn .gov




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