                                                                                             FILED
                                                                                           Jan 22, 2020
                                                                                          11:09 AM(ET)
                                                                                       TENNESSEE COURT OF
                                                                                      WORKERS' COMPENSATION
                                                                                             CLAIMS




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

DANNY LARSEN,                                     )   Docket No. 2015-02-0461
         Employee,                                )
v.                                                )
WALKER TRUCK CONTRACTORS,                         )
INC.,                                             )   State File No. 30692-2017
         Employer,                                )
And                                               )
ACCIDENT FUND GENERAL                             )
INSURANCE COMPANY,                                )   Judge Lisa A. Lowe
          Carrier.                                )


                          COMPENSATION HEARING ORDER


       This case came before the Court for a Compensation Hearing on January 21, 2020.
Mr. Larsen suffered a work-related injury and reached a settlement on his original award.
The issue currently before the Court is whether he is entitled to past temporary total
disability (TTD) benefits from February 29, 2016, through April 25, 2016. 1 For the
reasons below, the Court finds that Mr. Larsen failed to establish by a preponderance of
the evidence entitlement to TTD benefits.

                                        History of Claim

       Mr. Larsen injured his right hip while working for Walker Truck Contractors on
February 25, 2015. He was treated and returned to work three days later. Mr. Larsen
worked until he failed his required DOT physical. Walker terminated Mr. Larsen on
February 15, 2016, due to lack of a DOT physical card. He then filed a Petition for
Benefit Determination seeking additional treatment. At that time, Walker provided a
panel of physicians, from which Mr. Larsen selected Dr. Paul Yau. Dr. Yau treated him
and ultimately performed surgery.

1
 Mr. Larsen previously identified increased benefits as an issue.   However, during his testimony he
confirmed that he was only seeking 8.5 weeks ofTTD benefits.

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      Walker paid TTD benefits from February 27 through March 31, 2015, and April
25, 2016, through maximum medical improvement on May 15, 2018. Dr. Yau assigned
an impairment rating of 10%, and the parties settled Mr. Larsen's original award.

       At the Compensation Hearing, Mr. Larsen asserted entitlement to an additional 8.5
weeks of TTD benefits for the time he waited to see Dr. Yau. Mr. Larsen did not
introduce any medical records or medical opinions into evidence. He confirmed that he
did not seek medical treatment before seeing Dr. Yau and that Dr. Yau never addressed
his ability to work for the 8.5 weeks before the visit.

       Walker countered that Mr. Larsen failed to establish entitlement to additional TTD
benefits and moved the Court to grant an involuntary dismissal.

                        Findings of Fact and Conclusions of Law

      In nonjury cases, a motion for involuntary dismissal is permissible and governed
by Rule 41.02(2). An involuntary dismissal is often referred to as a "directed verdict."
In Burchfield v. Renfree, 2013 Tenn. App. LEXIS 685 (Tenn. Ct. App. Oct. 18, 2013),
the Court of Appeals reiterated the principles regarding directed verdicts:

       The rule for determining a motion for directed verdict requires the trial
       judge and the appellate courts to look to all of the evidence, take the
       strongest, legitimate view of the evidence in favor of the opponent of the
       motion and allow all reasonable inferences from it in his favor. The court
       must disregard all countervailing evidence and if there is then any dispute
       as to any material, determinative evidence or any doubt as to the
       conclusions to be drawn from the whole evidence, the motion must be
       denied. The court may grant the motion only if, after assessing the
       evidence according to the foregoing standards, it determines that reasonable
       minds could not differ as to the conclusions to be drawn from the evidence.

Id. at *86-87 (internal citations omitted).

       In this case, the Court doubts that reasonable minds would differ as to the
conclusions to be drawn from the testimony and evidence. However, a motion for
involuntary dismissal is rarely appropriate in a workers' compensation case, since a
reversal of the trial court's ruling results in additional proceedings and undue delay. See
Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 137-38 (Tenn. 2001). The trial court
should instead hear the entire case and make appropriate findings of fact. !d. Thus, the
Court denies the motion for involuntary dismissal and decides the case on the merits.

       At a Compensation Hearing, Mr. Larsen must establish by a preponderance of the

                                              2
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) (2019). To establish entitlement to TTD benefits, Mr. Larsen must prove: (1) a
disability from working as the result of a compensable injury; (2) a causal connection
between the injury and the inability to work; and (3) the duration of the period of
disability. Shepherd v. Haren Canst. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS
15, at *13 (Mar. 30, 2016).

      Mr. Larsen requested 8.5 weeks of past TTD benefits while waiting to see Dr.
Y au. He testified he failed his physical but offered no testimony about his inability to
perform any work during that 8.5-week period. Nor did he provide a medical opinion
addressing his inability to work during that period.

        After careful consideration, the Court holds that Mr. Larsen failed to establish, by
a preponderance of the evidence, entitlement to an additional 8.5 weeks of temporary
total disability benefits.

    IT IS, THEREFORE, ORDERED as follows:

     1. Mr. Larsen's claim against Walker Truck Contractors and its insurance carrier for
        additional temporary disability benefits is dismissed with prejudice against
        refiling.

     2. Walker Truck Contractors shall pay costs of $150.00 to the Court Clerk within
        five business days of this order becoming final. 2

     3. Absent an appeal, this order shall become final thirty days after issuance.

        ENTERED January 22,2020.




                                        LISA A. LOWE, JUDGE
                                        Court of Workers' Compensation Claims




2
 The statistical data related to this case can be found in the previously filed SD-2. Since no additional
benefits were ordered, neither party needs to file another SD-2.

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                                      APPENDIX

Technical record:

   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request For Expedited Hearing
   4. Employer's Response to Employee's Request for Expedited Hearing
   5. Employer's First Requests for Admission to Employee
   6. Motion to Allow Telephonic Appearance
   7. Order Granting Employer's Motion to Allow Telephonic Appearance
   8. Order Granting Employer's Motion to Allow Telephonic Testimony
   9. Employer's Pre-Hearing Brief
   10. Employer's Witness and Exhibit List
   11. Employee's Response

Exhibits:

   1. Employee's Response to Employer's Requests


                            CERTIFICATE OF SERVICE

      I certify that a copy of this Order was sent as indicated on January 22, 2020

         Name                Mail       Fax     Email    Service sent to:
Danny G. Larsen                 X                 X      maymaysmom@yahoo.com
Employee's Attorney                                      543 Brushy Valley Road
                                                         Clinton, TN 37716
Cole B. Stinson,                                  X      cole.stinson@accidentfund.com
Employer's Attorney




                                                        UM, COURT CLE
                                         WC.COUliC   erk@tn.gov




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