     FILED
   Feb 28, 2019
   01:22 PM(ET)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
evaluation and treatment. 1

      Star Vending later provided a panel of physicians, and she selected Dr. Samuel
Yoakum as her authorized treating physician. However, instead of Dr. Yoakum, Star
Vending scheduled an appointment for her with Dr. Ryan Dabbs. 2

       During her initial visit with Dr. Dabbs, Ms. Darnell reported catching and locking
in her left knee when she tried to walk and pain with weight-bearing after the fall. Dr.
Dabbs reviewed an MRI and diagnosed a medial tibial plateau bone contusion and soft-
tissue contusion of the left knee due to the fall at work. He placed her on light duty and
prescribed a knee brace.

        Ms. Darnell testified that, at her first visit, she informed Dr. Dabbs of her low back
and hip pain but told that she had to pick the injury to be treated that day. She also
testified that Star Vending offered to return her to work through a transition-to-work
program at a Knoxville Area Rescue Ministries (KARM) store in Knoxville.

       She reported for work at KARM on August 15 and understood that she would be
assigned to monitor the dressing room and assist customers. When she arrived, she was
instead assigned to sort donations from a seated position with her leg propped up and to
remove items from boxes on the floor. When she voiced concerns that the assignment
exceeded her restrictions, she was sent home. Star Vending paid her two weeks of
temporary disability benefits for August 15 through 29.

       During this time, Ms. Darnell continued to treat with Dr. Dabbs and on August 20
reported worsening knee pain with full weight-bearing and light-duty activities. Dr.
Dabbs restricted her to sitting only with her left leg and foot elevated and recommended
"toe-touch" walking with crutches.

        Star Vending offered to transition Ms. Darnell, a Knoxville resident, back to work
within her restrictions at a KARM store in Sevierville. She testified she did not report to
work at the Sevierville KARM store because she did not have transportation and the
distance was too far. When she failed to report to work, Star Vending did not offer any
further opportunities and stopped her temporary disability benefits.

      However, Star Vending continued to provide treatment with Dr. Dabbs. Ms.
Darnell continued to complain of left knee pain on September 10, so he referred her to
physical therapy. He continued her use of crutches but lifted her restrictions to sitting

1
  The parties did not introduce the Parkwest medical records relating to Ms. Darnell's treatment at
Parkwest.
2
 Neither party explained why Star Vending scheduled her treatment with Dr. Dabbs instead of Dr.
Yoakum.

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alternating with standing and no lifting with her legs.

        On October 1, in addition to her left knee pain, Ms. Darnell reported left hip pain.
Dr. Dabbs diagnosed left hip abductor tendonitis and bursitis, prescribed a steroid to
reduce her inflammation, and recommended additional physical therapy. He continued
her alternating sit/stand restriction with "sitting job mainly."

       A few days later, Ms. Darnell started working for TSI, a temporary employment
agency, and assigned to Reilly Foods as a tea packer. She testified she continues to work
for TSI and works at least thirty-two hours per week earning $10 per hour. She testified
her job requires her to stand and pack tea boxes at waist level.

       After going to work for TSI, Ms. Darnell returned to Dr. Dabbs on November 13
and reported low back pain since her injury, which worsened as her left knee pain
improved. He recommended that she see a spine specialist for her low back complaints
but continued her anti-inflammatory medications. He further recommended stretching
exercises and assigned lifting restrictions.

        In response to the referral, Star Vending questioned Dr. Dabbs regarding the
causal relationship of Ms. Darnell's low back pain to the work incident. It provided Dr.
Dabbs with a peer-review report by Dr. Robert C. Greenberg, who reviewed Ms.
Darnell's records and determined that her low back pain was "less than 50% or more
related to the work injury of 07 /22/18." It then asked Dr. Dabbs whether his referral was
more than 50% related to her work injury. He checked the option that stated, "The
referral is 50% or more related to causes other than her alleged July 22, 2018 injury."

        Ms. Darnell returned to Dr. Dabbs on February 1, 2019, where he noted diagnoses
of left knee contusion, left low back pain, and left hip pain. He purportedly placed Ms.
Darnell at maximum medical improvement and assigned limited-duty restrictions. 3

                        Findings of Fact and Conclusions of Law

      At an Expedited Hearing, Ms. Darnell must present sufficient evidence
demonstrating that she is likely to prevail at a hearing on the merits. See McCord v.
Advantage Human Res., 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015).

                                      Medical Benefits

      The Workers' Compensation Law requires an employer to provide an injured
employee with medical treatment made reasonably necessary by the work injury. See

3
 The parties introduced only the Worklink Physician's Report and not Dr. Dabbs' report from the
February 1, 2019 visit.

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Tenn. Code Ann. § 50-6-204(a)(3)(A)(i) (2018). An injury causes the need for medical
treatment only if it has been shown to a reasonable degree of medical certainty that it
contributed more than fifty percent in causing the need for medical treatment, considering
all causes. "Shown to a reasonable degree of medical certainty" means that, in the
opinion of the physician, it is more likely than not considering all causes, as opposed to
speculation or possibility. Moreover, the opinion of the treating physician, selected from
a panel of physicians, shall be presumed correct on the issue of causation but this
presumption shall be rebuttable by a preponderance of the evidence. See Tenn. Code
Ann.§ 50-6-102(14)(C)-(E).

        Here, the Court finds the medical records do not support Ms. Darnell's allegation
that she reported low back pain at her initial visit. The Court further finds the medical
records do not substantiate her allegation that Dr. Dabbs told her at her first visit that she
had to pick the injury to be treated. Instead, the records noted she complained only of
knee pain following the fall. Later, she developed hip pain, which Dr. Dabbs noted and
treated. Then, almost four months after the injury, the records reflect for the first time
her low back pain complaints. Of importance, the Court notes that she reported low back
pain after she went to work elsewhere in a standing position outside her restrictions.

       When asked whether the low back pain was related to the fall, Dr. Dabbs, the
authorized treating physician, determined that Ms. Darnell's back complaints were fifty-
percent or more likely caused by conditions other than the work injury. He agreed with
Dr. Greenburg.

        The Court does not give Dr. Dabbs' opinion a presumption of correctness because
Ms. Darnell did not select him from a panel. However, she failed to offer any other
medical opinion to counter Drs. Dabbs' and Greenburg's opinions that her low back
complaints were not likely caused by the work injury. See Berdnik v. Fairfield Glade
Comm. Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at * 16 (May 18, 2017) (A court
cannot award benefits where undisputed medical evidence states that an injury did not
arise primarily out of the employment).

       Therefore, the Court holds that Ms. Darnell failed to come forward with sufficient
evidence demonstrating she is likely to prevail at a hearing on the merits that her low
backs complaints arose primarily out of and in the course and scope of her employment.

                          Temporary Partial Disability Benefits

       Under the Workers' Compensation Law, an injured employee is entitled to
temporary partial disability (TPD) benefits if restricted from working due to a work
injury. See Tenn. Code Ann. § 50-6-207(2)(A).

      In Lasser v. Waste Mgmt., Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 20, at *7-8

                                             4
(May 24, 2018), the Workers' Compensation Appeals Board noted, "The statute does not
specify the type or location of work or the manner in which the partially disabled worker
can earn wages." The Appeals Board further held, "Whether an employee is entitled to
temporary partial disability in the face of an offer of modified duty work depends on the
reasonableness of the employer in attempting to return the employee to work and the
reasonableness of the employee in failing to either return to work or remain at work." Id.
at *21.

        Here, Ms. Darnell refused Star Vending's offer of transitional return-to-work at
the Sevierville KARM store because she did not have transportation and the assignment
was too far away. However, she did not testify that the distance was too great due to her
work injury but rather personal transportation difficulties. The Court finds Star
Vending's offer to return to work reasonable. Ms. Darnell's refusal of this offer related
to transportation issues rather than her restrictions. The Court holds her refusal to accept
this position unreasonable.       Therefore, she failed to present sufficient evidence
demonstrating she is likely to prevail at a hearing on the merits that she is entitled to
additional TPD benefits.

       IT IS, THEREFORE, ORDERED that Ms. Darnell's claim for the requested
benefits is denied at this time.

       This matter is set for a Status Conference on June 3, 2019, at 1:30 p.m. Eastern
Time. The parties must call 855-543-5041 to participate in the hearing. Failure to appear
by telephone may result in a determination of the issues without the party's participation.

       ENTERED February 28, 2019.




                                          P ~MELA B. JOHNSON, JUDGE
                                          Court of Workers' Compensation Claims

                                       APPENDIX

Technical Record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Motions - Motion to Dismiss
   5. Notice of Expedited Hearing
   6. Employer's Notice of Piling- Medical Questionnaire - Dr. Ryan Dabbs
   7. Motions - Employer's Withdrawal of Motion to Dismiss

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   8. Employer's Notice of Filing - Medical Records - Dr. Ryan Dabbs/ TOC
   9. Employer's Prehearing Brief
   10. Employer's Notice of Filing- Witness List
   11. Employer's Notice of Filing - Medical Records

       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.

Exhibits:
   1. Affidavit - Lisa Darnell
   2. First Report of Work Injury
   3. Table of Contents of Medical Records
       • Dr. Ryan Dabbs, Tennessee Orthopedic Clinic
       • Medical Questionnaire Response of Dr. Ryan Dabbs
       • Peer Review Report by Dr. Robert C. Greenberg
   4. Panel of Physicians
   5. TOC Worklink Report, February 1, 2018

                              CERTIFICATE OF SERVICE

        I 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 February 28, 2019.

Name                      Certified Fax      Email    Service sent to:
                          Mail
Lisa Darnell,             x                           4225 Skyline Drive
Self-Represented                                      Knoxville, TN 37914
Employee
Meredith B. Weaver,                          x        meredith.weaver@petersonwhite.com
Employer's Attorney




                                                     UM, Court Clerk
                                          WC.Coor Clerk@tn.gov




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