                                                                                          FILED
                                                                                      November 24, 2014
                                                                                         T:\' CO URTOF
                                                                                    WORJa:RS' COMPE:\'SATIO'i
                                                                                             CLAIMS
                  COURT OF WORKERS' COMPENSATION CLAIMS                                   Time: 7: 48 A.\1
                    DIVISION OF WORKERS' COMPENSATION


EMPLOYEE: Tracy Payne                                DOCKET#: 2014-01-0023
                                                     STATE FILE#: 60880-2014
EMPLOYER: D and D Electric                           DATE OF INJURY: August 1, 2014

CARRIER: The Hartford Ins. Co.


              EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS

        THIS CAUSE came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by Tracy Payne (Employee).           On October 21, 2014,
Employee filed a Request for Expedited Hearing with the Tennessee Court of Workers'
Compensation Claims, Division of Workers' Compensation, pursuant to Tennessee Code
Annotated section 50-6-239(d), to determine if the provision of medical and temporary disability
benefits is appropriate. The initial Request for Expedited Hearing requested a records review.
On October 23, 2014, Employee filed a second Request for Expedited Hearing in which he
requested a telephone hearing.

        A telephonic Expedited Hearing was conducted by the undersigned Workers'
Compensation Judge on November 14, 2014. Employee participated without counsel. D and D
Electric (Employer) was represented by Blair Cannon. Considering the positions of the parties,
the applicable law, the evidence introduced at the hearing, and the entire record, this Court
hereby finds Employee is entitled to medical benefits, but that he is not entitled to temporary
disability benefits.

                                         ANALYSIS

                                            Issues

       1. Whether Employee timely reported to Employer that he sustained an injury which
          arose primarily out of and in the course and scope of employment.

       2. Whether Employee is entitled to medical benefits.

       3. Whether Employee is entitled to temporary disability benefits.




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                                     Evidence Submitted

       Employee was the only witness who testified. No documentary evidence was submitted.

       The Court designated the following as the technical record:
          • Petition for Benefit Determination filed October 1, 2014;
          • Dispute Certification Notice filed October 21, 2014;
          • Request for Expedited Hearing filed October 21, 2014; and
          • Request for Expedited Hearing filed October 23, 2014.

The Court did not consider attachments to the above filings unless admitted into evidence during
the Expedited Hearing. The Court considered factual statements in the above filings as
allegations unless established by the evidence.

                                       History of Claim

        Employee was an electrician for Employer. He broke his foot while walking from his
workplace to his truck on August 1, 2014. He further claims that he has suffered a worsening of
diabetes and heart conditions because of his broken foot. Employee has not worked since the
date of the alleged injury. Employee gave Employer's owner, Brent Davidson, timely verbal
notice ofhis foot injury.

      Employer has not paid benefits because it contends Employee has not proven by a
preponderance of the evidence that he is entitled to benefits under the Tennessee Workers'
compensation Act. Employee filed a Petition for Benefit Determination seeking medical and
temporary disability benefits.

                                   Employee's Contentions

        Employee contends he broke his foot while walking to his truck from his assigned
workplace. He claims he first sought treatment of his injury later that evening. Employee
asserts he has undergone surgery to repair the broken foot and, because the foot will not heal
properly, he has been unable to work since August 1, 2014. Employee also claims he has
suffered a worsening of diabetes and heart conditions because of his broken foot.   Employee
seeks medical and temporary disability benefits.

                                   Employer's Contentions

         Employer contends Employee has not proven by a preponderance of the evidence that he
is entitled to benefits under the Tennessee Workers' Compensation Act.




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                          Findings of Fact and Conclusions of Law

                                       Standard Applied

        When determining whether to award benefits, a workers' compensation judge must
decide whether, based on the evidence introduced at the Expedited Hearing, the moving party is
likely to succeed on the merits at the Compensation Hearing. See generally, McCall v. Nat'l
Health Care Corp., 100 S.W. 3d 209, 214 (Tenn. 2003). In a workers' compensation action,
Employee shall bear the burden of proving each and every element of the claim by a
preponderance ofthe evidence. Tenn. Code Ann.§ 50-6-239(c)(6).

                                       Factual Findings

       Upon consideration of Employee's testimony and the entire record in this claim, the
Court makes the following factual findings:

           •   Employee timely reported to Employer's owner, Brent Davidson, that he broke
               his foot on August 1, 2014 while in the course and scope of his employment with
               Employer; and
           •   Employee has presented no medical evidence which establishes he is disabled
               from working as a result of his alleged broken foot.

                                  Application ofLaw to Facts

                                       Medical Benefits

       Employee seeks medical benefits for his injury. The Tennessee Workers' Compensation
Act imposes concurrent rights and obligations on an employer and an employee in connection
with the medical benefits to which an employee is entitled. Tennessee Code Annotated section
50-6-204(a)(l)(A) (2014) requires that "the employer or employer's agent shall furnish, free of
charge to the employee, such [treatment] made reasonably necessary by [a work-related]
accident." Tennessee Code Annotated section 50-6-204(a)(4)(A) requires that "the employee
shall accept the medical benefits afforded under this section." Tennessee Code Annotated
sections 50-6-204(a)(4)(A) through (E) require that an injured employee submit himself for
treatment by a physician selected from a panel composed of physicians compiled by the
employer.

       In Buchanan v. Mission Ins. Co., 713 S. W. 2d 654 (Tenn. 1986), the Tennessee Supreme
Court held that an injured employee's duty to give notice is concomitant with an employer's duty
to provide reasonable and necessary medical care. Accordingly, when Employee gave Employer
timely notice that he sustained an injury in the course and scope of his employment, it was
Employer's statutory obligation to provide Employee a panel of physicians.

       Tennessee Code Annotated section 50-6-201(a) (2014) requires that an injured worker
give his employer notice of his work injury within thirty (30) days of the date the injury
occurred. In this claim, Employee testified that, on the day after he was injured, he told

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Employer's owner, Brent Davidson, that "his foot was hurting" and that he was running a fever.
He further testified without objection that Mr. Davidson told him to go to the doctor.

        The Dispute Certification Notice filed in this claim does not list adequacy of notice as an
issue to be presented before the Court. Tennessee Code Annotated section 50-6-239(b) provides
that: "unless permission has been granted by the assigned workers' compensation judge, only
issues that have been certified by a workers' compensation mediator within a dispute
certification notice may be presented to the workers' compensation judge for adjudication." On
the basis of Employee's testimony and in consideration that failure of notice was not certified as
an issue to be presented in this claim, the Court finds at this time that Employee will likely
prevail in his contention that he gave Employer timely notice that he broke his foot in the course
and scope of employment. See McCall v. Nat 'I Health Care Corp., supra.

       Employer's argument that, before it is obligated to provide medical benefits, Employee
must establish the compensability of his claim through evidence is not supported by Tennessee
law. When Employee gave Employer notice of his injury, Employer's obligation to offer a panel
was concurrently invoked. See Buchanan, supra. Accordingly, the Court finds Employer must
provide Employee a panel composed of physicians competent to treat Employee's broken foot
from which Employee shall select an authorized treating physician.

                                  Temporary Disability Benefits

        Under Tennessee law, an injured worker must prove each and every element of his claim
by a preponderance of the evidence .. Tenn. Code Ann. § 50-6-239(c)(6) (2014); Humphrey v.
David Witherspoon, Inc., 734 S. W. 2d 315 (Tenn. 1987). Except in the most obvious cases, an
opinion of causation from a medical expert, combined with credible lay testimony, is required to
establish that a claimed disability arose primarily out of and in the course and scope of
employment. See, generally, Tindall v. Waring ParkAsso., 725 S. W. 2d 936 (Tenn. 1987).

        Employee submitted no medical evidence in this claim. Accordingly the Court is unable
to assess the nature and extent of Employee's claimed injury and whether he is disabled from
working on account thereof. In his testimony, Employee stated that, since he broke his foot, he
has suffered from a worsening of diabetes and heart conditions. Because this claim includes
issues about whether Employer's diabetes and heart conditions are work-related and, if not,
whether Employee's claimed disability is caused or contributed to by non-work-related
conditions, this claim is not one of such obvious determination that medical expert testimony is
not required. For that reason, the Court finds at this time that Employee has failed to prove by a
preponderance of the evidence that his claimed disability is work-related.

       IT IS, THEREFORE, ORDERED as follows:

1.      Medical care for Employee's injuries shall be paid by Employer or its workers'
compensation carrier and said medical care in this claim shall be initiated by Employer providing
Employee with a panel of physicians competent to treat a broken foot from which employee may
select an authorized treating physician as required by Tennessee Code Annotated section 50-6-
204. Medical bills shall be furnished to Employer or its workers' compensation carrier by


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Employee or his medical providers.

2.      Employee is not entitled to an award of temporary disability benefits.

3.    This matter is set for Initial Hearing on December 5, 2014, at 9:00a.m. Eastern Standard
Time.

4.     Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with
this Order must occur no later than seven (7) business days from the date of entry of this
Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The Insurer or
Self-Insured Employer must submit confirmation of compliance with this Order to the
Division by email to WCComp liance.Program@tn.gov no later than the seventh (7th)
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.

5.     For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email W om pl iance.Program@tn.gov or by calling (615) 253-1471 or
(615) 532-1309.

Initial Hearing:

      An Initial Hearing has been set with Judge Thomas Wyatt, Court of Workers
Compensation Claims, on December 5, 2014, at 9:00a.m. Eastern Standard Time. You must call
615-741-2051 or toll free at 855-747-1721 to participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date and time to participate. Failure to
call in may result in a determination of the issues without your further participation. All
conferences are set using Eastern Time (ET).

     ISSUED AND FILED WITH THE COURT OF WORKERS' COMPENSATION
CLAIMS ON THE 24TH DAY OF NOVEMBER, 2014.

                                                           ~ Judge Thomas Wyatt
                                                             Tennessee Court of Workers'
                                                             Compensation Claims
                                                             540 McCallie Avenue, Suite 600
                                                             Chattanooga, TN 37402


Right to Appeal:

    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:



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       1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal".

       2. File the completed form with the Court Clerk within seven (7) business days of the date
          the Expedited Hearing Order was entered by the Workers' Compensation Judge.

       3. Serve a copy of the Request for Appeal upon the opposing party.

       4. 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 purpose of having
          a transcript prepared by a licensed court reporter and filing it with the Court Clerk within
          ten (1 0) calendar days of the filing of the Expedited Hearing Notice of Appeal.
          Alternatively, the parties may file a statement of the evidence within ten (1 0) calendar
          days of the filing of the Expedited Hearing Notice of Appeal. The statement of the
          evidence must be approved by the Judge before the record is submitted to the Clerk of the
          Appeals Board.

       5. If the appellant elects to file a position statement in support of the interlocutory appeal,
          the appealing party shall file such position statement with the Court Clerk within three (3)
          business days of the filing of the Expedited Hearing Notice of Appeal, specifying the
          issues presented for review and including any argument in support thereof. If the
          appellee elects to file a response in opposition to the interlocutory appeal, appellee shall
          do so within three (3) business days of the filing of the appellant's position statement.

                                     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 24th day of November,
 2014.


Name                     Certified   First    Via   Fax        Via     Email Address
                         Mail        Class    Fax   Number     Email
                                     Mail
Tracy Payne                                                    X       tracypayne@bellsouth.net
Blair    Cannon,                                               X       Blair.cannon@thehartford.com
Atty.




                                                        Thomas Wyatt
                                                        Workers' Compensation Judge




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