                                                                                                             1\ilay 6, 2016

                                                                                                        rn comrr OF
                                                                                                    WORKERS' COl\IPINSATION
                                                                                                           CLAn IS

                                                                                                              Time: 8:37 Al\1

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

ANGELA MORGAN,                                              )    Docket No.: 2015-03-0412
        Employee,                                           )
v.                                                          )    State File Number: 57560-2014
DRS PRODUCT RETURNS,                                        )
         Employer,                                          )    Judge Pamela B. Johnson
and                                                         )
LIBERTY MUTUAL INS. CO.,                                    )
         Insurance Carrier.                                 )


                        EXPEDITED HEARING ORDER
              GRANTING TEMPORARY TOTAL DISABILITY BENEFITS


         This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the Employee, Angela Morgan, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). The central legal issue is whether
Ms. Morgan is entitled to temporary total disability benefits from December 10, 2015,
through March 28, 2016. For the reasons set forth below, the Court finds Ms. Morgan
suffi ·iently demonstrated that she is likely to prevail at a hearing on the merits on the
iss ue of entitlement to temporary total di sability benefits. 1

                                                History of Claim

       Ms. Morgan is a forty-three-year-old resident of Blount County, Tennessee. DRS
employed Ms. Morgan as a damaged merchandise scanner. On September 22, 2014, Ms.
Morgan lifted a box weighing approximately forty-five pounds when she felt a "pop" in
her right elbow. Later, she developed pain extending into her neck and shoulder. (See
generally T.R. 1-2.)

      Following her work injury, Ms. Morgan missed work from September 22, 2014,
through September 29, 2014. DRS excused the absences as Ms. Morgan submitted a
1
  A complete listing of the techni cal record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
doctor's excuse for her absence during that time. On September 30, 2014, Ms. Morgan
called Darlene Brown, her DRS supervisor, and left a message stating that her arm hurt
and she would not be at work that day. On October 1, 2014, Ms. Morgan again contacted
Ms. Brown and left a voicemail advising her doctor did not want her to report back to
work until she had another appointment with him. Jd. Ms. Morgan returned to work on
October 6, 2014. Because Ms. Brown did not provide a doctor's note for her absences
from September 30, 2014, through October 3, 2014, DRS did not excuse the absences.
(See generally Exs. 2 and 6.)

       On October 7, 2014, Ms. Brown called Ms. Morgan into her office to review DRS'
attendance policy. Ms. Brown informed Ms. Morgan that her unexcused absences from
September 30, 2014, through October 3, 2014, placed Ms. Morgan above the eight-point
threshold, as she had prior unexcused absences before her injury. As a result, Ms. Brown
advised Ms. Morgan that she was terminated. !d.

       Ms. Morgan came under the care of Dr. David K. Calvert at BMH Occupational
Health Center - Springbrook Clinic with complaints of right elbow pain. Dr. Calvert
diagnosed Ms. Morgan with right elbow sprain and ordered physical therapy. Ms.
Morgan later reported pain into her neck and shoulder. Dr. Calvert thereafter discharged
Ms. Morgan from his care and recommended an orthopedic referral. (See generally Exs.
9 and 10.)

       Dr. John Reynolds of Tennessee Orthopedic Clinic evaluated Ms. Morgan for her
right upper extremity pain. Dr. Reynolds recommended an MRI of the cervical spine and
right shoulder. He opined that Ms. Morgan's right upper extremity was coming from her
cervical spine and recommended she follow up with Dr. Patrick Bolt. (See generally Ex.
7 at 86-87.)

       Dr. Bolt diagnosed a herniated disc at CS-6 and recommended a CS-6 anterior
cervical discectomy and fusion. Dr. Bolt performed the recommended surgery on
December 10, 2015. (See generally Ex. 8.)

       By deposition taken February 10, 2016, Dr. Bolt testified he restricted Ms. Morgan
from heavy lifting or any vigorous neck movement following surgery. (Ex. 7 at 7.) Dr.
Bolt explained further:

      I think that someone with a disc herniation and with pain in the right arm
      would have- I would likely restrict them from heaving lifting particularly,
      and generally the restrictions I place on people are no lifting greater than
      five pounds frequently or 20 pounds total. I limit people from overhead or
      outstretched arm use. I limit people from prolonged cervical flexion or
      extension[.] ...


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       Immediately after the surgery, we typically have people out of work
       entirely until such time that they have healed their wounds. Then we have
       people on a no heavy lifting and no cervical extension or flexion, no
       overhead or outstretched arm use[.] ...

       It typically would be until the first postoperative visit two to three weeks
       out, which in this case was on January 25, 2016, I believe. I take that back,
       December 28, 2015.

(Ex. 7 at 37-38.)

       By office notes dated December 28, 2015, and January 25, 2016, Dr. Bolt
specifically instructed Ms. Morgan to avoid bed rest and increase activity as pain allows.
In the March 28, 2016 office note, Dr. Bolt indicated, "The patient was out of work, by
my order, from the date of her surgery till today. I am placing her on light duty today."
(See generally Ex. 8.)

      Ms. Morgan filed a Petition for Benefit Determination on November 12, 2015.
The parties did not resolve the disputed issues through mediation, and the Mediating
Specialist filed a Dispute Certification Notice on December 3, 2015. Ms. Morgan filed a
Request for Expedited Hearing, and this Court heard the matter on April 15, 2016.

        During the Expedited Hearing, Ms. Morgan testified her physicians released her to
work with restrictions after her September 22, 2015 work injury. However, she
developed pain from the sling prescribed for her to wear and left work early on
September 29, 2014. She remained out of work through October 3, 2014, until she saw
her physician. She testified DRS terminated her for cause because she missed work due
to her injury, but indicated she was eligible for rehire. (See also Ex. 3.)

       Ms. Morgan further testified the slow healing of the bone graft following her
December 10, 2015 surgery took longer than expected and Dr. Bolt did not release her to
return to work until March 28, 2016. On March 28, 2016, Dr. Bolt released her to return
to work with restrictions of no lifting anything other than a gallon of milk. !d.

        Daniel Phillips, Operations Specialist for DRS, testified he completed the initial
accident report following Ms. Morgan's September 22, 2014 work injury. Mr. Phillips
stated DRS accommodated Ms. Morgan following the work injury, explaining another
coworker placed boxes on Ms. Morgan's table for her to scan. Once Ms. Morgan
completed scanning the items, her coworker moved the box to a pallet. He additionally
testified DRS terminated Ms. Morgan for violation of the DRS attendance policy and
confirmed her eligibility for rehire. Mr. Phillips indicated were it not for her termination
for cause, DRS would have accommodated Ms. Morgan's restrictions upon her release to
return to work light duty on March 28, 2016. (See also Ex. 4.)

                                             3
        Ms. Morgan contended Dr. Bolt failed to recall during his deposition Ms.
Morgan's slow healing following the December 10, 20 15 surgery when he testified as to
the timeline he generally returns a patient to work following the surgery. Dr. Bolt's
subsequent office notes reveal a slow healing of the bone graft and as a result, he clearly
kept her completely out of work until March 28, 2016. Any accommodation that DRS
may have made is irrelevant because Dr. Bolt placed Ms. Morgan off work from
December 10, 2015, through March 28, 2016. Accordingly, Ms. Morgan asserted she is
entitled to temporary total disability benefits from December 10, 2015, through March
28,2016.

       DRS countered Dr. Bolt's deposition testimony indicated he released Ms. Morgan
to return to work light duty on December 28, 2015. DRS further argued but for Ms.
Morgan's termination for cause, DRS would have accommodated her restrictions. As
such, Ms. Morgan is not entitled to temporary total disability benefits from December 10,
2015, through March 28, 2016.

                       Findings of Fact and Conclusions of Law

        Ms. Morgan has the burden of proof on all essential elements of her workers'
compensation claim. Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015).
At an Expedited Hearing, however, Ms. Morgan need not prove every element of her
claim by a preponderance of the evidence in order to obtain relief. McCord v. Advantage
Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-
8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). Instead, she must present
sufficient evidence from which the Workers' Compensation Judge can determine that she
is likely to prevail at a hearing on the merits. !d.

        Under Workers' Compensation law, Ms. Morgan is eligible for temporary
disability benefits if: (1) she became disabled from working due to a compensable injury;
(2) a causal connection exists between the injury and the inability to work; and (3) she
establishes the duration of the period of disability. See Jones v. Crencor Leasing and
Sales, No. 2015-06-0332, 2015 TN Wrk. Gomp. App. Bd. LEXIS 48, at *7 (Tenn.
Workers' Comp. App. Bd. Dec. 11, 2015) (citing Simpson v. Satterfield, 564 S.W.2d 953,
955 (Tenn. 1978)). However, DRS may terminate temporary total disability benefits
either by Ms. Morgan's ability to return to work or her attainment of maximum recovery.
!d.

       In the present case, Ms. Morgan argues Dr. Bolt's March 28, 2016 office note
establishes her entitlement to temporary total disability benefits from December 10, 2015,
through March 28, 2016. In contrast, DRS contends Dr. Bolt's deposition testimony
limited Ms. Morgan's entitlement to temporary total disability benefits to December 10,
2015, through December 28, 2015. This Court disagrees with DRS.

                                            4
        Reviewing Dr. Bolt's deposition in its entirety, Dr. Bolt discussed the time frame
he generally released his patients to return to restricted duty following surgery and he
indicated that date would have been December 28, 2015, in Ms. Morgan's case.
However, Dr. Bolt's office notes do not support the general time frame for release to
return to work. Instead, Dr. Bolt's March 28, 2016 office note specifically states he kept
Ms. Morgan off work from the date of surgery until March 28, 2016. In addition, Ms.
Morgan testified the healing of the bone graft took longer than expected and resulted in
her out-of-work status until her release on March 28, 2016. Accordingly, this Court finds
Ms. Morgan demonstrated: ( 1) she became disabled from working due to a compensable
injury; (2) a causal connection exists between the injury and the inability to work; and (3)
the duration of the period of disability.

       Based upon the evidence introduced at the Expedited Hearing, and as a matter of
law, this Court finds Ms. Morgan sufficiently demonstrated that she is likely to prevail at
a hearing on the merits on the issue of entitlement to temporary total disability benefits
from December 10, 2015, through March 28, 2016. Therefore, her request for additional
temporary total disability benefits is granted.

IT IS, THEREFORE, ORDERED as follows:

   1. The amount of temporary disability benefit is $254.56 per week. Payment of past-
      due benefits in the amount of $254.56 per week shall be made for the period from
      December 10, 2015, to March 28, 2016, for a total payment of$3,963.88.

   2. This matter is set for an Initial (Scheduling) Hearing on July 11, 2016, at 1:30
      p.m. Eastern Time.

   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
      W Compliance.PJograrn@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 W Compliancc.Program@l.11.go or by calling
      (615) 253-1471 or (615) 532-1309.




                                            5
       ENTERED this the 6th day of May, 2016.




                                          HON. PAMELA B. JOHNSON
                                      Court of Workers' Compensation Claims

Initial (Scheduling) Hearing:

        An Initial (Scheduling) Hearing has been set with Judge Pamela B. Johnson, Court
ofWorkers' Compensation Claims. You must call (865) 594-0091 or (855) 543-5041 toll
free to participate in the Initial Hearing. Failure to call in may result in a determination
of the issues without your further participation.

Right to AppeaJ:

       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:

   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

                                            6
   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 ofthe 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
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.




                                         7
                                       APPENDIX

Exhibits:
       •    EXHIBIT 1: Wage Statement, Form C-41;
       •    EXHIBIT 2: Affidavit of Darlene Brown;
       •    EXHIBIT 3: Deposition Transcript of Angela E. Morgan;
       •    EXHIBIT 4: Deposition Transcript of Daniel V. Phillips;
       •    EXHIBIT 5: Deposition Transcript of Robert W. McKechnie;
       •    EXHIBIT 6: Deposition of Darlene Brown;
      •     EXHIBIT 7: Deposition of Patrick M. Bolt, M.D.;
      •     EXHIBIT 8: Medical Records of Tennessee Orthopaedic Clinic;
      •     EXHIBIT 9: Medical Records ofBMH- Springbrook Clinic; and
      •     EXHIBIT 10: Medical Records ofBlount Memorial Hospital.

Technical Record:
          • Petition for Benefit Determination, filed November 12, 2015;
          • Dispute Certification Notice, filed December 3, 2015;
          • Request for Expedited Hearing, filed December 10, 2015;
          • Employer's Position Statement, filed December 15, 2015;
          • Employer's Motion for Continuance, filed February 16, 2016;
          • Order of Continuance, issued February 19, 2016;
          • Pre-Hearing Order, issued February 19, 2016;
          • Motion for Continuance, filed March 21, 2016;
          • Order of Continuance, issued March 28, 2016;
          • Agreed Exhibit List, filed April 11, 20 16; and
          • Supplemental Agreed Exhibit list, filed April 14, 2016.

       The Court did not consider attachments to Technical Record filings unless
admitted into evidence during the Expedited Hearing. The Court considered factual
statements in these filings or any attachments to them as allegations unless established by
the evidence.




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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 6th day
ofMay, 2016.

Name                        Certified Via       Via     Service sent to:
                            Mail      Fax       Email
Ralph Brown, Esq.,                                X     rbrown @browna ndroberto.com
Employee's Counsel
Eric Shen, Esq.,                                  X     eric.shen@li bcrtymutual .com
Employer's Counsel




                                        4nptru~~
                                         Court of o kers' Compensation Claims
                                               WC.CourtClerk@tn.gov




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