     FILED
   Dec 26, 2018
   04:14 PM(CT)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
       While taking the recorded statement, Kellogg's claims representative told Mr.
Hurd that Tennessee law might not cover idiopathic injuries, described by the
representative as injuries that "can happen anywhere." Kellogg determined Mr. Hurd's
injury was idiopathic and denied his claim.

       After the denial, Mr. Hurd sought medical treatment on his own primarily with Dr.
Marc Mihalko. At the first visit, Dr. Mihalko recorded that Mr. Hurd hurt his knee when
"he went down a step and he may have turned and felt a pain and a pop." Dr. Mihalko's
records contain no other mention of the injury and do not include a causation opinion.
Eventually, Dr. Mihalko surgically repaired a ruptured quadriceps tendon in Mr. Hurd's
knee. He missed twelve weeks of work. Mr. Hurd requested payment of his bills and
those of the hospital where the surgery was pe1formed. 1

       Mr. Hurd filed a Petition for Benefit Determination, and Kellogg agreed to pay a
lump sum for a doubtful and disputed settlement. This Court rejected the proposed
settlement, finding it was not in Mr. Hurd' s best interests based upon his statements at the
approval hearing. See Tenn. Code Ann. § 50-6-240(e) (2018). Mr. Hurd then obtained
counsel, who filed a new PBD and requested this expedited hearing.

       At the hearing, Mr. Hurd detailed the incident as follows:

       Once I had done the inspection, I turned to come back off the deck. When I
       turned, I took the first step down with the right leg [and] holding the
       handrail. At that time, my left leg turned awkwardly, and at the time it
       doubled behind me onto the platform. And that's when I felt something
       pop.

Mr. Hurd also said water was on both the floor and the platform, so his feet would have
been wet. He asserted his description at the hearing was consistent with his recorded
statement but simply gave more detail. Further, Mr. Hurd testified he was taking pain
medication at the time of the recorded statement, and that might have affected his
recollection. He also pointed out that the claims representative did not ask detailed
questions as to how the injury occurred.

       On cross-examination, Kellogg confronted Mr. Hurd with contradictory statements
about the injury from his recorded statement. Kellogg pointed to the lack of mention of
wet smfaces and that he did not say that he tripped or fell but that he was "in between the
step and platform" when his knee popped.




1
  Mr. Hurd received short-term disability from Kellogg for the time he missed from work. He did not
request temporary benefits at this time.

                                                2
       Mr. Hurd asserted he is entitled to payment of the stipulated medical bills and
continuing treatment with Dr. Mihalko. He contended there is "no question" his injury
arose out of his employment because he was injured on stairs. He relied specifically on
Bullard v. Facilities Performance Grp., 2018 TN Wrk. Comp. App. Bd. LEXIS 37 (Aug.
7, 2018), for the proposition that an injury while using steps provides the required causal
connection to work. Additionally, Mr. Hurd asse1ted entitlement to attorney's fees for
wrongful denial of the claim under Tennessee Code Annotated section 50-6-
226(d)(l)(B). Both of his attorneys filed affidavits supporting their requests.

       For its part, Kellogg argued that Bullard does not apply because the employee
there actually fell because of a step; here, Mr. Hurd only stepped down on one. It
reasoned that "nothing was wrong with the step,'' and Mr. Hurd' s "taking" the step was
not "an extraordinaiy event." Finally, Kellogg argued that it does not owe attorney's fees
because it did not wrongfully deny the claim.

                       Findings of Fact and Conclusions of Law

                     Arising out of employment vs. idiopathic injury

       At this interlocutory proceeding, Mr. Hurd must come forward with sufficient
evidence showing he likely would likely prevail at a hearing on the merits. Tenn. Code
Ann. § 50-6-239(d)(l). The dispositive issue is whether Mr. Hurd's injury arose primarily
out of his employment or was idiopathic. An injury arises primarily out of the
employment if it contributes more than fifty percent in causing the injury, considering all
causes. Tenn. Code Ann. § 50-6-102(14)(B). Conversely, an idiopathic injury is one of
unexplained origin or cause, and generally does not arise out of the employment unless
some condition of the employment presents a peculiar or additional hazard. McCaffery v.
Cardinal Logistics, 2015 TN Wrk. Comp. App. Bd. LEXIS 50, at *9 (Dec. 10, 2015).

       Here, the Court finds Mr. Hurd's injury originated in a hazard related to his job;
namely, he descended a step from an elevated height and injured his knee. "Tennessee
courts have consistently held that an employee may not recover for an injury occurring
while walking unless there is an employment hazard, such as a puddle of water or a step,
in addition to the injured employee's ambulation." Bullard, at *11, citing Wilhelm v.
Kroger, 235 S.W.3d 122, 128-29 (Tenn. 2007) (Emphasis added). In making this holding,
the Court finds Mr. Hurd detailed the incident without hesitation and was calm, self-
assured and steady. The Court finds him credible and believes he was injured as
described. See Kelly v. Kelly, 445 S.W.3d 685, 694 (Tenn. 2014).

        Kellogg argued that Mr. Hurd provided a prior inconsistent statement three days
after the incident. However, contrary to Kellogg's argument, Mr. Hurd said in his earlier
statement that "as I turned to come down ... I made the first step" and injured the knee.
Mr. Hurd's description of what caused his injmy has remained consistent. It was not an

                                            3
idiopathic injury, as it was neither of unexplained origin or cause nor the result of a
condition purely personal to him. See Veter v. Wackenhut Servs., No. E2010-00965-WC-
R3-WC, 2011 Tenn. LEXIS 78, at *9 (Tenn. Workers' Comp. Panel Jan. 28, 2011). Thus,
the Court holds Mr. Hurd would likely prevail at a hearing on the merits regarding
causation.

                                    Medical benefits

       Turning now to Mr. Hurd's request for medical benefits, Tennessee Code
Annotated section 50-6-204(a)(l)(A) requires an employer to provide treatment "made
reasonably necessary by an injury." An employer has the right to conduct "a reasonable
investigation" and make a decision regarding compensability within fifteen days after
receiving notice. Tenn. Comp. R. & Regs. 0800-02-14-.04(6) (August 2018). This
opportunity to investigate prevents compelling an employer to provide medical benefits
without regard to any potential defenses. Hardin v. Dewayne's Quality Metals, 2015 TN
Wrk. Comp. App. Bd. LEXIS 45, at *8 (Nov. 18, 2015).

       Here, the Court rejected Kellogg's idiopathic injury defense and held Mr. Hurd
would likely prevail on his request for medical benefits. Thus, he should receive payment
of his bills to date. See McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *9 (Mar. 27, 2015).

       In addition, Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) requires an
employer to designate a panel of physicians for treatment. Kellogg did not provide a
panel, and any belated attempt to do so after Mr. Hurd has established a doctor-patient
relationship with Dr. Mihalko will not succeed under these facts. See Burnette v.
WestRock, 2017 TN Wrk. Comp. App. Bd. LEXIS 66, at * 12 (Oct. 31, 2017). Thus, the
Court designates Dr. Mihalko as the treating physician.

                                    Attorney's fees

        Mr. Hurd's attorneys requested fees for Kellogg's wrongful denial of the claim
under Tennessee Code Annotated section 50-6-226(d)(l)(B). In Thompson v. Comcast,
2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *31 (Jan. 30, 2018), the Appeals Board held
awards of attorney's fees at an expedited hearing for wrongful denials are appropriate
only in "extremely limited circumstances." Recently, the Board clarified the analysis in
Travis v. Carter Express, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS _ (Dec. 21,
2018). The Board held section 226(d)(l)(B) and Thompson established a two-pronged
test for considering a pre-trial request for attorney's fees. First, a trial court must
determine if the employer "wrongfully denied" the claim. If so, then the court must
determine if the requested fees satisfy the "extremely limited circumstances"
requirement. Here, the Court holds Kellogg wrongfully denied Mr. Hurd's claim and that
the facts satisfy the extremely limited circumstances requirement.

                                           4
        As to wrongful denial, in Andrews v. Yates Servs., 2018 TN Wrk. Comp. App. Bd.
LEXIS 22, at *13 (May 8, 2018), the Appeals Board held the proper considerations in
determining whether a denial was wrongful are whether the employer's decision was
"incoITect, eIToneous, or otherwise inconsistent with the law or facts at the time the
decision was made." Applying those considerations, Mr. Hurd said from the outset that
he "made the first step" and his knee popped. Further, Kellogg's claim representative
stated that his understanding of idiopathic injuries was that they "can occur anywhere,"
with no consideration of the steps as an employment hazard. Finally, through the hearing,
Kellogg maintained that Mr. Hurd did not fall, that the step was not defective, and that
navigating the step was not an extraordinary event. These considerations were incorrect
and inconsistent with Tennessee law now and at the time of Kellogg's denial, and the
Court considers the denial wrongful under the statute.

        Next, the Court holds the facts satisfy the extremely limited circumstances
requirement for the same reasons. As directed by Travis, the Court has considered the
uncertainties of litigation, that discovery and medical proof are incomplete, and that the
standard of proof at this interlocutory stage is different than at a compensation hearing.
Travis, at *11. Here, the Court notes Mr. Hurd's credibility and his consistency in
detailing how he injured his knee on the stairs. Further, Dr. Mihalko recorded that Mr.
Hurd injured his knee on the stairs. Collectively, these facts support a holding that this
case falls within the extremely limited circumstances for an interlocutory award of
attorney's fees.

       As to the fees, the Com1 reviewed the attorneys' supporting affidavits. Both
attorneys established by sworn affidavit that they have over fifteen years' experience
practicing law including litigation, and they detailed their work to the tenth of the hour.
The Court holds the requested fees are reasonable as to time and amount when
considering the factors of Tennessee Supreme Court Rule 8, RPC 1.5 and awards them.

IT IS, THEREFORE, ORDERED as follows :

1. Kellogg shall pay Mr. Hurd's bills from Campbell Clinic and Methodist Hospital
   under the fee schedule.

2. Kellogg shall provide Mr. Hurd with continued reasonable and necessary medical
   treatment under Tennessee Code Annotated section 50-6-204(a)(l)(A). Dr. Mihalko is
   designated the authorized physician.

3. The Court grants Mr. Hurd's requested fees under Tennessee Code Annotated section
   50-6-226(d)(l)(B), namely, Mr. Burton's requested amount of $2,475.00 and Mr.
   Wener's requested amount of $1,550 (plus $10.04 in expenses).

4. This matter is set for a telephonic Status Hearing on Tuesday, February 26, 2019, at

                                            5
   9:00 a.m. Central time. The parties must call 731-422-5263 or toll-free 855-543-
   5038 to participate in the Hearing.

5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with
   this Order must occm 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). The Insmer
   or Self-Insured Employer must submit confirmation of compliance with this Order to
   the Bmeau by email to WCCompliance.Program@tn.gov no later than the seventh
   business day after entry of this Order. Failme to submit the necessary confirmation
   within the period of compliance may result in a penalty assessment for non-
   compliance. For questions regarding compliance, please contact the Workers'
   Compensation Compliance Unit via email at WC ~ e.Pr~gram@tn.gov.

      ENTERED this the 26'• day of DecetO 2 8.




                                           6
                                        APPENDIX

Exhibits:

   1.   Medical Records of Campbell Clinic-Dr. Mihalko
   2.   Medical Records of Methodist Hospital
   3.   Medical bills of Campbell Clinic
   4.   Medical bills of Methodist Hospital
   5.   First Report of Work Injury
   6.   Transcript of Mr. Hurd's Recorded Statement
   7.   Affidavit of Attorney Burton in support of attorney's fees request
   8.   Affidavit of Attorney Wener in support of attorney's fees request


Technical Record:

   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing with supporting affidavit of Mr. Hurd




                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 26th day
of December, 2018.

               Name                     Via        Service sent to:
                                       Email
Andrew L. Wener and                      x         awener@wenerlawfirm.com
Michael Burton,                                    mburton@michaelburtonlawoffice.com
Employee's Attorneys
Thomas J. Smith,                         x         tsmith@spicerfirm.com
Employer's Attorney
Timothy Kellum,                          x         timothy.kellum@tn.gov
SIVRF Attorney




                                               PENNY SHRUM, COURT CLERK
                                                   wc.courtclerk@tn.g v
                                               7
