                                                                                     FILED
                                                                                   Apr 30, 2018
                                                                                   01:01 PM(ET)
                                                                                TENNESSEE COURT OF
                                                                               WORKERS' COMPENSATION
                                                                                      CLAIMS




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

Kathy Matheson,                               )   Docket No.: 2017-01-0699
           Employee,                          )
v.                                            )
QCJC, Inc.,                                   )   State File No.: 91531-2016
              Employer,                       )
And                                           )
New Hampshire Ins. Co.,                       )   Judge Audrey Headrick
         Carrier.                             )



                           EXPEDITED HEARING ORDER



       This matter came before the Court on April 17, 2018, on Kathy Matheson's
Request for Expedited Hearing. The central legal issue is whether Ms. Matheson is likely
to establish at trial that she is entitled to temporary total disability (TTD) benefits. For
the reasons set forth below, the Court holds she is entitled to the requested benefits.

                                    History of Claim

       The essential facts of this case are undisputed. Ms. Matheson, a registered nurse,
suffered a compensable left knee injury on November 22, 2016. Her treating physician,
Dr. David Bruce, referred her to a joint replacement specialist because she previously
underwent a left-knee implant. Ms. Matheson selected Dr. Matthew Bernard from a
panel, and he scheduled her for surgery on June 19, 2017, to repair the previous knee
implant. Dr. Bernard recommended Ms. Matheson remain off work for two weeks after
her surgery.
        Since Ms. Matheson is a noninsulin-dependent diabetic, Dr. Bernard referred her
to her primary care physician for an A 1C blood test for surgical clearance. He explained
that the A 1C provides a better indicator of long-term, blood glucose control. If a patient
has a high A 1C level, it can lead to infection at the surgical site, delayed wound healing,

                                             1
and hardware implant failure. For those reasons, Dr. Bernard wants his patients to have
an A1C level of eight or lower before proce ding with surgery. Since Ms. Matheson's
A 1C level was eleven point nine he postponed the June 19 surgery. 1
       Dr. Bernard performed Ms. Matheson's surgery on December 5 after her A1C
level dropped to seven point six. He testified that the sole reason for the delay was due
"[t]o her elevated hemoglobin A1C and uncontrolled diabetes." (Ex. 5.) Dr. Bernard
explained that "[ d]iabetes is an incredibly difficult disease to manage over a lifetime,"
and the diabetic medications a patient needs may change over time. !d.
       QCJC, Inc. (QCJC) paid Ms. Matheson TTD benefits through August 1, 2017, but
it stopped paying benefits from August 2 through November 13 because of the delay in
performing surgery due to the diabetic issues. It resumed TTD payments on November
14 when Dr. Bernard advised he could perform surgery.
      Ms. Matheson argued that she is entitled to TTD benefits from August 2 through
November 13. She also argued that the rule in Tennessee is that an employer takes an
employee as it finds her, and "no one' s health is perfect."
        QCJC countered that the delay in Ms. Matheson's surgery was due solely to her
personal health condition. It relied on Mace v. Express Services, Inc., 2015 TN Wrk.
Comp. App. Bd. LEXIS 49, *7-8 (Dec. 11, 2015) which held that temporary total
disability benefits are paid while an employee is completely unable to work because of
the injury.

                           Findings of Fact and Conclusions of Law

                                      General Legal Principles

       Ms. Matheson must present sufficient evidence that she is likely to prevail at a
hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(l) (2017); McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The Court holds Ms. Matheson would likely prevail at a hearing on the merits regarding
her request for additional TTD benefits.
                                    Temporary Total Disability Benefits

        Ms. Matheson requests payment ofTTD from August 2, 2017, through November
13, 2017. She is eligible for TTD benefits if: (1) she became disabled from working due
to a compensable injury; (2) a causal connection exists between the injury and her
inability to work; and (3) she established the duration of her disability. Jones v. Crencor

1
 Prior to her work injury, Ms. Matheson testified that she routinely had the A 1C test one to two times per
year. She also stated this was not the first time she had a high A 1C level.


                                                    2
Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). TTD
benefits cease upon her ability to return to work or when she reaches maximum medical
improvement. Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978).

       The holding in Rogers v. B.F. Shaw, 813 S.W.2d 397 (Tenn. 1991) is instructive. 2
There, the employee developed asbestosis due to his work as a pipe fitter. The employee
ultimately developed lung cancer. In an effort to save the employee's life, his physician
recommended removing his lung. Pre-surgical testing revealed a coronary artery
blockage that necessitated bypass surgery. Such surgery was required before his
physician could perform the work-related lung surgery. The employee suffered a stroke
during the bypass surgery and ultimately died.

        The issue in Rogers was whether the bypass surgery was "reasonably required"
under Tennessee Code Annotated section 50-6-204 in order to treat his occupational lung
disease. !d. at 400. The Court first noted the long-held rule that an employer takes an
employee "as he is" with his pre-existing conditions. !d. at 399. Further, it noted the
direct and natural consequence rule states, in part, "that all the medical consequences and
sequelae that flow from the primary injury are compensable." !d. at 400. The Court
found that the proof showed that bypass surgery was reasonably required to treat the
work-related lung cancer, and it held that the employee's death due to that treatment was
compensable.

       Under the current Workers' Compensation Law, an employer must "furnish, free
of charge to the employee, such medical and surgical treatment . . . made reasonably
necessary by accident[.]" Tenn. Code Ann. § 50-6-204(a). Here, Dr. Bernard required
Ms. Matheson to have an AI C blood test level of eight or lower before proceeding with
her work-related, knee surgery. He testified the only reason for delaying her surgery
from June 19, 2017, to December 5, 2017, was due to her high AlC level. Therefore, the
Court finds that the medical proof shows that the pre-surgical clearance testing
requirement that Ms. Matheson have an eight or lower A1C level was "made reasonably
necessary" in order to treat her knee injury.

       After so finding, the Court next considers the criteria for entitlement to TTD
benefits. First, Ms. Matheson satisfied the requirement that a compensable injury
disabled her from working. It is undisputed that Ms. Matheson sustained a compensable
knee injury, and Dr. Bernard took her offwork from June 13,2017, forward. Second, she
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 1, 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." McCord, at *13 n.4.




                                                     3
established a causal connection between the injury and her inability to work. It is
undisputed that Dr. Bernard took Ms. Matheson off work due to her knee injury, and his
pre-surgical clearance testing requirement was "made reasonably necessary" in order to
treat that injury. Finally, Ms. Matheson satisfied the third criteria based on the
undisputed period of disability from August 2, 2017, through November 13, 2017.

       Thus, the Court holds Ms. Matheson is likely to prevail at a hearing on the merits
in proving she is entitled to temporary total disability benefits from August 2 through
November 13. The parties stipulated Ms. Matheson's compensation rate is $853 .33 per
week and, based on that rate, she is entitled to payment of $12, 678.05 for the period of
August 2 to November 13, 2017.

IT IS, THEREFORE, ORDERED as foilows:

   1. QCJC shall pay past due temporary total disability benefits of $12,678.05 for the
      period from August 2, 2017, to November 13, 2017.

   2. This matter is set for a Status Hearing on Tuesday, June 19, 2018, at 10:00 a.m.,
      Eastern Time. You must call 423-634-0164 or toll-free at 855-383-0001 to
      participate. Failure to call may result in a detennination of the issues without your
      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) (2017).   The Insurer or Self-Insured
      Employer must submit confirmation of compliance with this Order to the
      Bureau by email to WCCompliance.Program@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.

   4. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email at WCCompl iance.Program@tn.go

      ENTERED April 30, 2018.




                                            4
                                     APPENDIX

Exhibits:
   1. First Report
   2. Panels
   3. Notice of Controversy
   4. Affidavit of Kathy Matheson
   5. Deposition of Dr. Matthew Bernard
   6. Table of Contents to Deposition (Curriculum Vitae, Lab Results, and Medical
       Records)

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Show Cause Order
   4. Order on Show Cause Hearing
   5. Request for Expedited Hearing
   6. Notice of Objection
   7. Order Setting Claim for Expedited Hearing
   8. Notice of Expedited Hearing
   9. Notice of Filing Deposition
   10. Notice of Filing Exhibits with Table of Contents
   11. Expedited Hearing Brief of Employer and Carrier




                                          5
                            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 April30, 2018.

Name                    Certified       Via             Email Address
                        Mail            Email
Scott Wesson,                               X           scottwesson@warrenandgriffin .com
Employee's Attorney
David J. Deming,                            X           ddeming@manierherod.com
Employer's Attorney                                     tjoiner@manierherod.com




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                                                                                                        -4----
                                         wc.c urtclerk@tn.gov




                                            6
                           Expedited H aring 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 lndigency (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 lndigency 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 jive
      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' INDrGENCY


I,                                                , 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:
$ _ _ _ _ _ __

8. 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-1108 (REV 11/15)                                                                               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                   $ _ _ _ __              Describe:,__ _ _ _ _ _ _ __


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 11/1 5)                                                                         RDA 11082
