           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                           AT NASHVILLE

JAMES FORIEST,                              )
        Employee,                           )   Docket No. 2017-06-0413
                                            )
v.                                          )
                                            )
UNITED PARCEL SERVICE, INC.,                )   State File No. 92945-2016
        Employer,                           )
                                            )
And,                                        )
LIBERTY MUTUAL INSURANCE                    )   Judge Joshua D. Baker
COMPANY,                                    )
        Carrier.                            )


         COMPENSATION HEARING ORDER GRANTING BENEFITS


       The Court convened a bifurcated compensation hearing on February 14, 2018, to
adjudicate all issues except permanent disability and permanent medical benefits. The
Court bifurcated this hearing at Mr. Foriest’s request. UPS did not oppose bifurcation.

        Mr. Foriest’s private health insurance carrier denied coverage for surgery related
to this injury, and Mr. Foriest’s physician cannot determine permanent impairment pre-
surgery. Thus, the present focus is whether Mr. Foriest’s injury arose primarily out of
and in the course and scope of his employment and, if the injury arose primarily out of
his employment, the benefits to which he is presently entitled. For the reasons below, the
Court holds Mr. Foriest suffered an injury that arose primarily out of the course and
scope of his employment with UPS. The Court holds he is entitled to temporary total
disability benefits, medical benefits, and the cost of medical care provided to date. The
Court reserves the issues of permanent disability and permanent medical benefits.




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                                            History of Claim

       On October 11, 2016, Mr. Foriest, a UPS delivery-driver, completed roughly sixty
stops of his dedicated route before parking his truck in an empty lot to take a break. His
supervisor, Terry Holder, accompanied him on his route that day to evaluate Mr. Foriest’s
work. During the break, Mr. Foriest injured his right knee.

       Mr. Foriest and Mr. Holder both testified that Mr. Foriest’s right knee popped as
he walked during his break. Beyond this agreement, their testimony on how the injury
occurred differed significantly. Mr. Foriest said he hopped down from the rear of the
truck, but Mr. Holder recalled that Mr. Foriest exited from the passenger side, which has
steps. Mr. Foriest described his knee popped “almost immediately” after he exited the
truck, while Mr. Holder recalled it popped after they were parked for ten to fifteen
minutes.

        Because both men previously had total knee replacements, Mr. Holder suggested
the popping was innocuous and could improve with stretching, as his replaced knee had
popped that morning, too. But “the third, maybe fourth, time” it popped, Mr. Holder
testified, “I saw something protrude or push the skin out . . . that’s what really kind of
blew me away.”

       The following day, Dr. William Shell, the authorized treating physician, examined
Mr. Foriest, concluded he had dislocated his kneecap and took him off work.1 He
referred him to his partner, Dr. Allen Anderson.

       Dr. Anderson also believed Mr. Foriest had a dislocated kneecap. He concluded
that the dislocation constituted a “new injury,” unrelated to the previous total-knee
replacement. He performed surgery to reconstruct the ligament around the patella, and
Mr. Foriest underwent physical therapy. Dr. Anderson wrote that Mr. Foriest had “done
really well [with his knee replacement] until this happened. And now he’s basically
incapacitated. Consequently, this is a new injury that is work-related.”

        UPS denied Mr. Foriest’s claim, asserting Mr. Foriest was simply walking,
unaffected by any hazard of his employment, when his injury occurred. Following an
expedited hearing, this Court agreed and found Mr. Foriest failed to prove he suffered an
acute injury that arose primarily out of his employment. The Court, however, stated that
its decision did “not foreclose him from proving he suffered a gradual injury.”

       Meanwhile, Mr. Foriest continued with physical therapy and also continued to
have knee pain and swelling. During physical therapy, Mr. Foriest suffered “an incident
of giving way [of the knee] with an audible pop after which he had difficulty walking or

1
    Dr. Shell performed Mr. Foriest’s previous total knee replacement in 2009.
                                                      2
bending his knee.” After this physical therapy incident, Dr. Anderson reexamined Mr.
Foriest’s knee and determined it contained a “loose body.” Dr. Anderson performed an
arthroscopy and discovered a piece of “polyethylene.” Following the arthroscopy, Dr.
Anderson referred Mr. Foriest back to Dr. Shell.

       In his deposition, Dr. Shell described the piece of polyethylene as a broken “post”
from the total knee replacement.2 Even though the condition is uncommon, Dr. Shell
described the condition as a “recognized complication” of a total knee replacement. He
described the problem as a “failure” of the total knee replacement and recommended
surgical correction. Mr. Foriest’s private medical insurance refused to pay for the
procedure.

        Dr. Shell testified he and Dr. Anderson “missed” the broken post when they first
examined Mr. Foriest, and that Dr. Anderson likely could not have seen the broken post
during the first surgery. Further, he had “no question that [Mr. Foriest’s] current
symptoms and the previous two operations by Dr. Anderson were due to his total knee
failure.” He pointed to a “low signal intensity body within the suprapatellar pouch” on an
MRI taken twelve days after the alleged injury and said, “In retrospect, that was the
broken off piece of polyethylene.”3 Dr. Shell testified unequivocally that the
polyethylene became fatigued “over a long period of time” because of Mr. Foriest’s
physically demanding job, until it broke on October 11, 2016. He specifically identified
Mr. Foriest’s employment as “the major contributing factor” to the mechanism failure,
explaining that activity “is a significant issue in component longevity.”

       Mr. Foriest and Mr. Holder, UPS employees for twenty-six and thirty-two years
respectively, described the physical demands on a delivery-driver. Mr. Foriest estimated
that he walks between nine and thirteen miles every day on every type surface, walks up
and down hills and steps, and delivers packages to one hundred and fifty stops, climbing
in or out of his truck roughly three hundred times per day during an eleven-hour shift.
While Mr. Foriest testified the weight limit for lifting is 150 pounds, Mr. Holder clarified
that “anything over 70 pounds, you’re supposed to have either help or use your [safety]
methods,” such as sliding, rolling or walking an item to a dolly.

        Mr. Foriest’s wage statement indicated his average weekly wage was $1,140.78,
resulting in a $760.55 compensation rate. Dr. Shell stated Mr. Foriest was unable to
work from October 12, 2016, to the present because of the injury and said, “I don’t see
how he can perform his job until this is corrected.” Mr. Foriest has not undergone
surgery to correct the knee-replacement failure.

2
    Dr. Anderson passed away before giving his deposition in this case.
3
 Dr. Shell also explained that the post did not break during Mr. Foriest’s physical therapy. Instead, the
“sudden pain” Mr. Foriest experienced during physical therapy happened when the post “caught up under
his patella, or moved around enough that it got in his joint[.]”
                                                      3
        The Court permitted Mr. Foriest two weeks from the compensation hearing to file
medical bills. He filed those with a summary on February 27, indicating $67,282.36 was
billed to his private health insurance carrier and that his out-of-pocket expenses totaled
$1,171.77. UPS raised no opposition to the bills or summary filed.

                             Legal Principles and Analysis

       At a compensation hearing, Mr. Foriest must establish by a preponderance of the
evidence that he is entitled to the requested benefits. Willis v. All Staff, 2015 TN Wrk.
Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-
239(c)(6) (2017). The employee in a workers’ compensation claim has the burden of
proof on all essential elements of the claim. Scott v. Integrity Staffing Solutions, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015).

       To prevail, Mr. Foriest must prove he suffered a compensable injury. Under
Workers’ Compensation Law, an “injury” means 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. An 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.” An injury causes the need for medical treatment if shown
to a reasonable degree of medical certainty that the injury contributed more than fifty
percent (50%) in causing the disablement or need for medical treatment. See Tenn. Code
Ann. § 50-6-102(14). An employee need not prove a single, sudden event caused his
injury if the injury occurred from a set of incidents over an identifiable period of time.
Smiley v. Four Seasons Coach Leasing, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 28
at *22 (July 15, 2016).

       Mr. Foriest argued that Dr. Shell’s opinion provides expert medical evidence that
his injury was primarily caused by “the pounding” his knee endured working for UPS
during the seven years after his total knee replacement. He asserted that repeated work
trauma to his right knee culminated in a disability on October 11, when the post from his
total knee replacement broke. He relied on Dr. Shell’s opinion that he has been totally
disabled from work since his injury, that the injury required two surgeries by Dr.
Anderson, and that the injury resulted in the present need for surgery. UPS argued this
was an acute injury unrelated to the total knee replacement. UPS asserted that the post
broke during physical therapy but provided no medical proof to support this assertion.

       The Court finds Mr. Foriest suffered a gradual injury during the seven years he
worked for UPS after his total knee replacement. Mr. Foriest and Mr. Holder provided
testimony showing work at UPS involves extensive bending, walking and lifting. Dr.
Shell testified this work activity was “the major contributing factor” that caused the knee

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replacement to fail, resulting in Mr. Foriest’s inability to work and need for additional
treatment. While UPS argued this was an acute event unrelated to cumulative trauma, it
did not offer countervailing expert medical evidence to rebut Dr. Shell’s opinion.
Without this, the Court is constrained to rule in favor of Mr. Foriest as judges are not
well-suited to make an independent medical determination without expert medical
testimony supporting the determination. Scott at *8. Similarly, parties cannot rely solely
on their own medical interpretations to successfully support their arguments. Lurz v.
Int’lernational Paper Co., 2018 TN Wrk Comp. App. Bd. LEXIS 8, at *17 (Feb. 14,
2018). The Court therefore holds that Mr. Foriest suffered a gradual, compensable injury
to his knee on October 11, 2016.

       Having established compensability, Mr. Foriest payment seeks temporary total
disability, temporary medical benefits, and payment of past medical expenses at this
portion of the bifurcated compensation hearing.4 The Court holds UPS must provide the
requested relief.

       Tennessee law requires an employer to provide “free of charge to the employee
such medical and surgical treatment . . . made reasonably necessary by accident as
defined in this chapter[.]” Tenn. Code Ann. § 50-6-204(a)(l)(A). In providing the
treatment, the Workers’ Compensation Law requires an employer to “designate a group
of three (3) or more independent reputable physicians . . . from which the injured
employee shall select one (1) to be the treating physician.” Id. at 50-6-204(a)(3)(A)(i). If
an employer fails to provide a panel, it risks having to pay for all reasonable and
necessary medical expenses incurred by an employee for treatment with an unauthorized
physician, and also risks having to provide continuing care with the unauthorized
physician. See Young v. Young Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16-
17 (May 25, 2016).

       Here, UPS denied Mr. Foriest’s claim from the outset, and he sought treatment
from Drs. Shell and Anderson utilizing his private insurance until it declined to pay for
further treatment. His private insurance paid $67,282.36 for treatment and Mr. Foriest
paid $1,171.77 out of pocket       Dr. Shell testified that the treatment provided was
reasonable and necessary. The Court holds that UPS shall be responsible for these
medical expenses. Additionally, the Court appoints Dr. Shell as the authorized treating

4
  While the Court acknowledges prior decisions from the Appeals’ Board hazarding against bifurcation,
the Court agrees with the parties that bifurcation was the best option here as Mr. Foriest cannot procure
the surgery necessary to heal his knee from either workers’ compensation or his private insurance.
Furthermore, the Court understands that Mr. Foriest cannot simply pay for the surgery out of pocket. The
parties did not want to try the case under the lesser standard burden proof at an expedited hearing
(likelihood of success on the merits), only to turn around and try it again under the higher burden of proof
at a compensation hearing (preponderance of the evidence). Additionally, had Mr. Foriest not prevailed
in proving compensability, the case would be over absent an appeal, and Mr. Foriest could then secure
care under his private medical insurance after the finding of non-compensability.
                                                     5
physician for future care.

        Concerning temporary disability benefits, Dr. Shell said Mr. Foriest’s
compensable October 11, 2016 injury totally disabled him from the day of the injury until
the present. The Court, therefore, holds that Mr. Foriest proved his claim for temporary
total disability benefits. See Jones v. Crencor Leasing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 48, at *7 (Dec. 11, 2015) (To be eligible for temporary disability benefits an
employee must prove he became disabled from working due to a compensable injury, the
causal connection between his injury and his inability to work, and the duration of his
disability.). UPS shall pay Mr. Foriest accrued temporary disability benefits from
October 12, 2016, through the date of this order in a lump sum—a period of seventy-four
weeks and two days. UPS shall continue making payments to Mr. Foriest on a biweekly
basis at his compensation rate of $760.55 per week until Dr. Shell releases him to return
to work.

IT IS, THEREFORE, ORDERED as follows:

   1. UPS shall pay Mr. Foriest the cost of his out-of-pocket expenses, $1,171.77, for
      medical treatment he received for his work injury. UPS shall also consult with
      Mr. Foriest’s private health insurance carrier to arrange reimbursement to the
      carrier for the treatment provided to Mr. Foriest.

   2. UPS shall provide ongoing medical treatment for Mr. Foriest with Dr. Shell
      serving as the authorized treating physician. Either Dr. Shell or Mr. Foriest shall
      submit the bills to Liberty Mutual for payment.

   3. Mr. Foriest is entitled to temporary total disability benefits from October 12, 2016,
      through the date of this order, in the amount of $56,504.00, and going forward at a
      compensation rate of $760.55 per week until he reaches maximum medical
      improvement or is no longer entitled to temporary disability benefits under
      workers’ compensation law.

   4. The issues of permanent disability benefits and permanent medical benefits are
      reserved; therefore, this is not a final order addressing all contested issues in this
      claim.


ENTERED MARCH 15, 2018.


                                   _____________________________________
                                   Judge Joshua Davis Baker
                                   Court of Workers’ Compensation Claims

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                                     APPENDIX

Exhibits:

   1.   Medical Records Filed February 1, 2018
   2.   2009 Workers’ Compensation Settlement Documents
   3.   First Report of Injury
   4.   Wage Statement
   5.   Mr. Foriest’s Recorded Statement
   6.   Terry Holder’s Accident Summary Statement
   7.   Dr. William Shell’s Deposition Transcript
   8.   Expedited Hearing Transcript

Technical Record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice filed
   3.   Expedited Hearing Order
   4.   Motion for Bifurcated Hearing
   5.   Order Setting Compensation Hearing
   6.   Joint Compensation Hearing Statement
   7.   Notice of Filing Medical Bills
   8.   Amended Notice of Filing Medical Bills




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                          CERTIFICATE OF SERVICE

       I certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on March ___,
                                                        15th 2018.


Name                     Certified Via Via        Service sent to:
                         Mail      Fax Email
Stephan Karr,                            X        steve@flexerlaw.com
Employee’s Attorney
David Hooper,                                X    dhooper@hooperzinn.com
Employer’s Attorney




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




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