                      TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                        WORKERS’ COMPENSATION APPEALS BOARD

Mitchel Helgerson                                          )   Docket No. 2014-03-0023
                                                           )
v.                                                         )
                                                           )    State File No. 65382-2014
Packer Sanitation Services, Inc.                           )


                                       CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 23rd day of September, 2015.
 Name                      Certified   First Class   Via   Fax       Via     Email Address
                           Mail        Mail          Fax   Number    Email

 D. David Sexton                                                        X    dsexton@sextonandwykoff.com
                                                                             megan@sextonandwykoff.com
 Charles W. Gilbreath II                                                X    cgilbreath@noogalaw.com
 Pamela B. Johnson,                                                     X    Via Electronic Mail
 Judge
 Kenneth M. Switzer,                                                    X    Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                    X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: Matthew.Salyer@tn.gov
             TENNESSEE BUREAU OF WORKERS' COMPENSATION
                WORKERS' COMPENSATION APPEALS BOARD
                                                                                      FILED
                                                                               September 23, 2015
Mitchel Helgerson                           )    Docket No. 2014-03-0023
                                                                                     TENNESSEE
                                            )                                   WORKERS ' COMPENSATION
                                                                                   APPEALS BOARD
v.                                          )                                       Time: 7:40 A.M.
                                            )    State File No. 65382-2014
Packer Sanitation Services, Inc.            )
                                            )
                                            )
Appeal from the Court of Workers'           )
Compensation Claims                         )
Pamela B. Johnson, Judge                    )


                  Affirmed and Remanded- Filed September 23, 2015


The employee reported that his right knee popped and he felt immediate pain when he
stepped down from a stool at work. The employer initially authorized medical treatment,
but denied the claim approximately five weeks later. Following an expedited hearing, the
trial court issued an interlocutory order for medical benefits requiring the employer to
provide a panel of orthopedic physicians to the employee. On appeal, the employer
asserts that the employee is not entitled to additional medical benefits since he failed to
satisfy his burden of proof as to whether the knee condition arose primarily out of and in
the course and scope of employment. The employer additionally contests the trial court's
credibility determinations. Having carefully reviewed the record, we affirm the trial
court's judgment and remand the case for any further proceedings as may be necessary.

Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, and Judge Timothy W. Conner joined.

Charles W. Gilbreath, II, Chattanooga, Tennessee, for the employer-appellant, Packer
Sanitation Services, Inc.

D. David Sexton, Knoxville, Tennessee, for the employee-appellee, Mitchel Helgerson




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                          Factual and Procedural Background

       Mitchel Helgerson ("Employee") is a thirty-seven-year-old resident of Knox
County, Tennessee. He was employed as a machine cleaner by Packer Sanitation
Services, Inc. ("Employer"), in July 2013, before being promoted to leader in May 2014.
Employer provides cleaning services for industrial plants, and Employee was assigned to
a food production facility in Knoxville, Tennessee.

        On August 8, 2014, Employee reported for work at 10:30 p.m. Approximately
three hours later, which was soon after midnight on August 9, 2014, Employee was
cleaning overhead pipes that ran along the ceiling, which required him to use elevated
grates, a ladder, or a step stool. Employee reported that while stepping down from an
eighteen-inch stool, he slipped "a little bit" due to food residue on the floor, twisted, and
felt a pop in his right knee. Although acknowledging a 2002 right knee injury, he denied
having any problems with his right leg or knee immediately prior to the August 9, 2014
incident.

       Following the incident, Employee ''took a break," during which he called his
father and asked him to bring a knee brace to the work site. Employee alleges that, while
on break, he informed a supervisor, Adam Welch, that he had hurt his knee. He did not
seek immediate medical attention because he thought he only had a sprain, and he hoped
his symptoms would abate. Although Employee worked the following night, he called in
the next two nights and advised his direct supervisor, Jason Sharp, that he was unable to
work.

       When Employee returned to work on the evening of August 13, 2014, he spoke to
Mr. Sharp and asked that a workers' compensation claim be initiated. He and Mr. Sharp
then participated in a teleconference with Medcor, a company that accepts and processes
reports of work injuries on behalf of Employer. During this call, Employee described the
incident and his symptoms. He also acknowledged a prior injury involving the same
knee that occurred approximately twelve years earlier. The Medcor representative
referred Employee to Knoxville Medical Center without offering Employee a choice of
physicians.

       Employee was evaluated and treated on four occasions by Dr. J. Donald King, Jr.
The records document that Employee was initially seen on August 14, 2014, at which
time he described an August 9, 2014 work-related injury when "he stepped off a step
stool and twisted his [right] knee and felt it pop." Dr. King prescribed medication and
recommended that Employee begin physical therapy and continue icing his knee and
wearing the "private knee brace." The diagnoses in the initial report included ( 1)
"[d]erangement of anterior hom of medial meniscus," (2) right leg effusion of joint, and
(3) "[s]prain of medial collateral ligament of knee." Dr. King imposed work restrictions


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limiting specified activities to a maximum of one hour per day. Employer accommodated
the restrictions, and Employee continued working modified duties.

       Employee's second visit with Dr. King occurred on August 25, 2014, at which
time Employee reported that his symptoms "have remained the same." Dr. King
continued physical therapy and the medication and recommended Employee continue
icing his knee. He also continued Employee's work restrictions. On August 28, 2014,
Employee returned to Dr. King. The report of the visit states that Employee "had an
episode in [physical therapy] yesterday with weight shifts and popping catch on medial
aspect of [right] knee causing increased pain." Employee reported an increase in pain
and other symptoms. Dr. King's report noted that Employee's range of motion decreased
and that his "gait has decreased [with] more pain on ambulation." Dr. King continued
physical therapy, medication and icing, and he recommended an MRI study of the right
knee, which was completed on August 30, 2014.

        The August 30, 2014 MRI revealed (1) a large bucket handle tear of the medial
meniscus, (2) a one centimeter cyst, "ganglion versus parameniscal cyst adjacent to the
anterior root medial meniscus," (3) a "[h]igh-grade ACL tear" that the report states
"[s]uspect chronic," (4) "[s]mall to moderate joint effusion," and (5) "[m]inimal
chondromalacia." Employee returned to Dr. King on September 5, 2014, reporting no
improvement. Dr. King reviewed the results of the MRI and recommended that
Employee continue his program of conservative care. Dr. King also referred Employee
for orthopedic consultation.

        On September 17,2014, Employer completed a "Notice of Change or Termination
of Compensation Benefits" form and a "Notice of Controversy" form indicating that
Employee was notified on September 15, 2014 that benefits were terminated. The forms
state the reason for the termination of benefits and the matter in dispute as "Employer's
[sic] report of mechanism of injury is inconsistent with the previous report to supervisor
and injuries as identified by the authorized doctor."

        On October 28, 2014, Employee filed a petition for benefit determination
requesting temporary disability benefits and medical benefits. On June 1, 2015,
Employee requested an expedited hearing and asked that the trial court issue a ruling
based on a record review without an evidentiary hearing. Employer filed a motion to
quash the request, asserting it did not have "the vast majority of the medical records from
[Employee's] prior knee injury." Employer filed a separate response in opposition to
Employee's request for expedited hearing asking the court to hold an in-person
evidentiary hearing if the court did not grant its motion to quash. On July 2, 2015, the
trial court denied the motion to quash and scheduled an in-person evidentiary hearing for
July 31, 2015.



                                            3
       Employee and his supervisor, Mr. Sharp, testified at the hearing, offering differing
accounts of when and how Employee reported his injury, whether Employee attributed
his complaints to an old injury, and the circumstances of Employee's termination. On
August 20, 2015, the trial court issued its Expedited Hearing Order for Medical Benefits
ordering Employer to provide Employee "a panel of orthopedic physicians from which he
may select a physician for evaluation and treatment of any work-related injury pursuant
to Tennessee Code Annotated section 50-6-204."

         Employer timely filed a notice of appeal on August 31, 2015, asserting (1)
Employee did not offer medical proof that his injury more likely than not occurred in the
course and scope of his employment, (2) the trial court erred in determining that
Employee was credible, (3) Employee voluntarily resigned his employment, and (4) the
trial court erred in failing to determine which of two First Reports of Injury is controlling.
The record was received by the Clerk of the Appeals Board on September 14, 2015.

                                    Standard of Review

        The standard of review to be applied by the Appeals Board in reviewing a trial
court's decision is statutorily mandated and limited in scope. Specifically, "[t]here shall
be a presumption that the fmdings and conclusions of the workers' compensation judge
are correct, unless the preponderance of the evidence is otherwise." Tenn. Code Ann. §
50-6-239(c)(7) (2014). The limited circumstances warranting reversal or modification of
a trial court's decision are specified in the statute:

       The workers' compensation appeals board may reverse or modify and
       remand the decision of the workers' compensation judge if the rights of any
       party have been prejudiced because findings, inferences, conclusions, or
       decisions of a workers' compensation judge:

       (A) Violate constitutional or statutory provisions;
       (B) Exceed the statutory authority of the workers' compensation judge;
       (C) Do not comply with lawful procedure;
       (D) Are arbitrary, capricious, characterized by abuse of discretion, or clearly
       an unwarranted exercise of discretion; or
       (E) Are not supported by evidence that is both substantial and material in the
       light of the entire record.

Tenn. Code Ann. § 50-6-217(a)(3) (2015).

        In applying the standard set forth in subparagraph (E) above, courts have
construed "substantial and material" evidence to mean "such relevant evidence as a
reasonable mind might accept to support a rational conclusion and such as to furnish a
reasonably sound basis for the action under consideration." Clay Cnty. Manor, Inc. v.

                                              4
State, Dep't ofHealth & Env't, 849 S.W.2d 755, 759 (Tenn. 1993) (quoting Southern Ry.
Co. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984)). Like other courts
applying the standard embodied in section 50-6-217(a)(3), we will not disturb the
decision of the trial court absent the limited circumstances identified in the statute.

                                         Analysis

       The primary issue on appeal is whether Employee presented sufficient evidence to
support the trial court's order for medical benefits requiring Employer to provide a panel
of orthopedic physicians as recommended by the authorized treating physician, Dr. King.
Employer also raises a credibility issue, asserting the trial court erred in finding
Employee credible "in the face of testimony, records, and recordings that contradicted his
version of the events." Additionally, Employer presents as issues whether Employee
voluntarily resigned his employment by refusing to comply with Employer's requirement
that he return a Family Medical Leave Act form within five days, and whether the trial
court erred in failing to determine which of two First Reports of Injury controls in the
case. We decline to address the latter two issues as they are immaterial to the trial court's
August 20, 2015 order for medical benefits.

                              The Award of Medical Benefits

       Citing Tennessee Code Annotated section 50-6-239(c), Employer asserts that an
employee is not entitled to medical benefits unless the employee proves to a reasonable
degree of medical certainty that the injury at issue primarily arose out of and in the course
and scope of the employment. Relying on the trial court's finding that "Dr. King,
however, does not provide an opinion on causation to allow this Court to determine
whether [Employee's] right-knee injury of August 9, 2014, arose primarily out of and in
the course and scope of his employment," Employer asserts that Employee's evidence
was insufficient to establish a right to medical benefits. We find no merit in Employer's
position.

        Employer overlooks the applicable standard for a trial court to enter an
interlocutory order concerning the provision of temporary disability or medical benefits
as is stated in the trial court's August 20, 2015 order. "[A]n 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
[Tennessee Code Annotated] section 50-6-239(d)(l)." McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. Bd. LEXIS 6, at *7-8, 9 (Tenn.
Workers' Comp. App. Bd. Mar. 27, 2015). Here, the trial court expressly determined that
while Employee has not proven by a preponderance of the evidence that he suffered an


                                             5
injury arising primarily out of and in the course and scope of his employment, "he has
shown that he is likely to prevail at a hearing on the merits."

                                        Credibility

       Employer also asserts that the trial court erred in finding Employee credible.
Employer requests that we fmd Employee "to be incredible, and credit the testimony of
Mr. Sharp." As the Tennessee Supreme Court has observed many times, reviewing
courts must conduct an in-depth examination of the trial court's factual findings and
conclusions. Wilhelm v. Krogers, 235 S.W.3d 122, 126 (Tenn. 2007). As noted above,
our review of a trial court's order is governed by Tennessee Code Annotated sections 50-
6-217(a)(3) (2015) and 50-6-239(c)(7) (2014). Section 50-6-239(c)(7) provides a
presumption "that the findings and conclusions of the workers' compensation judge are
correct, unless the preponderance of the evidence is otherwise." When the trial court has
seen and heard the witnesses, considerable deference must be afforded the trial court's
factual findings. Tyron v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008). No similar
deference need be afforded the trial court's fmdings based on documentary evidence.
Glisson v. Mohon Int'l Inc., 185 S.W.3d 348, 353 (Tenn. 2006). Despite the deferential
standard of review for live testimony, we must still assess independently where the
preponderance of the evidence lies. See Tenn. Code Ann.§ 50-6-239(c)(7).

        After independently reviewing the record and guided by the above principles, we
conclude that the evidence does not preponderate against the trial court's findings with
respect to Employee's credibility. The trial court heard the testimony of Employee and
his supervisor, Mr. Sharp. Additionally, the trial court heard the recorded telephone
conversation involving Employee, his supervisor and the Medcor representative. The
trial court expressly found Employee to be credible, stating that "[a]ny inconsistencies in
his report of the August 9, 2014 work incident were minor and caused by the fact that the
work incident occurred during an overnight shift, which encompassed two calendar
days." Moreover, as stated by the trial court, "[t]he medical records of the authorized
treating physician, Dr. King, support [Employee's] description of the work incident."

                                       Conclusion

      For the foregoing reasons, the trial court's judgment is affirmed and the case is
remanded for such additional proceedings as may be necessary.



                                                David F. Hensley, Judge
                                                Workers' Compensatio Appeals Board



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