           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT KINGSPORT

Brandon Taylor,                              )     Docket No.: 2015-02-0088
           Employee,                         )
v.                                           )     State File No.: 28018-2015
                                             )
TEC Industrial,                              )     Date of Injury: March 10,2015
           Employer,                         )
And                                          )     Judge: Brian K. Addington
                                             )
ESIS-Ace USA,                                )
           Insurance Carrier.                )



          EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS


       THIS CAUSE came before the undersigned Workers' Compensation Judge on
August 20, 2015, upon the Request for Expedited Hearing filed by Brandon Taylor (Mr.
Taylor), the Employee, on July 8, 2015, pursuant to Tennessee Code Annotated section
50-6-239 (2014) to determine if the Employer, TEC Industrial (TEC), is obligated to
provide medical benefits to Mr. Taylor. Considering the positions of the parties, the
applicable law, and all of the evidence submitted, the Court concludes that Mr. Taylor is
not entitled to the requested benefits.

                                       ANALYSIS

                                          Issues

     1.  Whether Mr. Taylor is entitled to medical benefits for his alleged work injury of
        March 10, 2015.
     2. Whether Mr. Taylor sustained an injury that arose primarily out of and in the
        course and scope of employment with TEC.
     3. Whether Mr. Taylor's injury was idiopathic in nature.


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   4. Whether Mr. Taylor suffered from a pre-existing condition that was aggravated by
      a work-related injury.
   5. Whether Mr. Taylor sustained an injury in the course of employment with TEC.
   6. Whether the panel ofphysicians provided by TEC was in compliance with the law.
   7. Whether Mr. Taylor is entitled to another panel of physicians in compliance with
      the law.
   8. Whether TEC is obligated to pay for any past medical expenses and/or mileage
      expense.

                                  Evidence Submitted

       The Court admitted into evidence the exhibits below:

          1. Collective medical records;
          2. Affidavits of Brandon Taylor, dated April21, 2015, and June 1, 2015; and,
          3. Form C-42 panel selection of Dr. Sanjeev Kakker.

       The Court designated the following as the technical record:

          •   Petition for Benefit Determination (PBD), April14, 2015
          •   TEC's Response to PBD, April30, 2015
          •   Dispute Certification Notice (DCN), May 29, 2015
          •   Request for Expedited Hearing (REH), July 8, 2015.

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 or any attachments thereto as allegations unless established by the evidence.

       The following witnesses provided in-person testimony:

          •   Mr. Taylor
          •   Michael Love-Safety Technician
          •   Shannon Salts-Safety Director.

                                    History of Claim

       Mr. Taylor worked for TEC as an iron worker, when on March 10, 2015, he
slipped and fell while climbing out of a manhole, and injured his right knee. (Ex. 2 at 3.)
Mr. Taylor reported his injury to his foreman, Jimmy Berry. !d. Mr. Berry notified TEC
Safety Technician, Michael Love, who accompanied Mr. Taylor to the office of TEC's
Safety Director, Shannon Salts, to discuss the incident. On Mr. Salts' instruction, Mr.
Taylor reported to TEC's on-site medical provider, Nurse Linda Hensley. !d.

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        Nurse Hensley examined Mr. Taylor's right knee and recommended over-the-
counter ibuprofen and naproxen. Id. She instructed Mr. Taylor to "take it easy" at work.
He returned to work that day. The next day, March 11, 2015, Mr. Taylor experienced
continued right-knee pain. Jd. He returned to Nurse Hensley and received similar
treatment. Jd. TEC did not offer Mr. Taylor a panel of physicians. (Ex. 2 at 1.) Mr. Taylor
testified he did not know he was entitled to a physician panel.

       Also on March 11, 2015, Mr. Taylor presented at Watauga Orthopedics for
evaluation of his right knee. (Ex. 1 at 23.) He charged the visit to his personal health
insurance. ld. Of note, the provider recorded the date of injury as March 9, 2015. Mr.
Taylor informed the provider that, "he fell off of a 4-foot drop and landed on his knee and
hyperextended it. [He] states he thought it was fine, but the pain is now getting worse."
ld. The provider recorded that the injury was not work-related. (Ex. 1 at 24.) At the in-
person hearing, the parties stipulated all of the records from Watauga Orthopedics record
that Mr. Taylor's condition was not work-related.

       The physician at Watauga Orthopedics ordered right-knee x-rays, the results of
which were within normal limits. !d. The provider diagnosed Mr. Taylor with "knee
pain," adding that, "Based on patient's physical exam, x-rays, and history, possible lateral
meniscus [tear]. Will schedule patient for MRI. Patient will follow-up post-MRI with Dr.
[Todd] Fowler." ld.

       According to Mr. Taylor's testimony, on March 12, 2015, he informed his
superiors his right-knee pain persisted, and he requested a return to TEC's on-site
medical provider. TEC obliged. During the visit, Mr. Taylor saw two nurse practitioners,
who advised he should return in "6-8 weeks," in order to allow an opportunity for the
healing process to continue. TEC did not provide him with a panel of physicians. When
asked why he did not provide a panel to Mr. Taylor, Mr. Salts stated, "it must have
slipped."

         Mr. Taylor underwent the right-knee MRI on March 18, 2015. (Ex. 1 at 22.) Mr.
Taylor only missed work in order to attend medical appointments. He stated during the
hearing he did not miss work due to disabling knee pain. Mr. Taylor also acknowledged
TEC altered his job duties so he would not put undue stress on his injured knee. Mr.
Taylor acknowledged Mr. Berry, Mr. Love, and Mr. Salts all followed -up with him
regularly to see how his knee fared. Indeed, Mr. Salts testified he instructed Mr. Berry
and Mr. Love to check on Mr. Taylor's knee condition every day. However, Mr. Taylor
admitted he did not inform his superiors at TEC of his treatment at Watauga. Mr. Salts
testified that, when he asked Mr. Taylor if he required any other treatment apart from on-
site medical, Mr. Taylor replied, "No."

       Watauga Nurse Practitioner (NP) Everett Baker examined Mr. Taylor on March

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27, 2015. (Ex. 1 at 16.) NP Baker noted that Mr. Taylor's knee pain was "worsening,"
and he had been "wearing a patella stabilizer." Id. NP Baker diagnosed Mr. Taylor with
chondromalacia of the patella and patellar tendonitis. !d. He prescribed Meloxicam and
ordered physical therapy with instructions to follow- up with Dr. Fowler after completing
therapy. !d.

       In the meantime, Mr. Taylor filed a PBD with the Court on April 14, 2015,
requesting medical benefits. The Mediating Specialist assigned to Mr. Taylor's case
contacted TEC, which promptly provided Mr. Taylor with a panel of physicians. (Ex. 3.)
Mr. Taylor selected an occupational medicine specialist, Dr. Sanjeev Kakkar, on April
16, 2015.Jd.

        Dr. Kakkar examined Mr. Taylor on April 21, 2015. (Ex. 1 at 7.) Mr. Taylor
discussed the work accident with Dr. Kakkar and identified the date of injury as March
10, 2015. ld. Dr. Kakkar diagnosed Mr. Taylor with a right-knee sprain/strain. (Ex. 1 at
8.) In Dr. Kakkar's Patient Visit Summary, he did not mark whether the injury was work-
related, but hand-wrote the following: "Pending. Reviewing medical information." (Ex. 1
at 6.) He allowed Mr. Taylor to return to work "as tolerated." Jd.

     On April 21, 2015, Dr. Kakkar prepared an email entitled, "Determination of
Work Relatedness." (Ex. 1 at 5.) He found as follows:

      Based on my medical evaluation, review of the clinic notes, and utilizing
      the new worker compensation laws of injury determination which apply to
      injuries occurring after July 1, 2014, I don't attribute to the work place
      contributing more than 50% to Mr. Brandon Taylor's current right knee
      symptoms. There was a work-related event on 3110115, which prompted
      Mr. Taylor to be evaluated by an orthopedist for his right knee pain.
      However, the MRI done later on Mr. Taylor's right knee indicates that he
      has patellar alta, and mild chronic changes of the proximal patellar tendon.
      It is probable that Mr. Taylor had a low grade right knee sprain initially, but
      that is not the primary contributor to his current right knee symptoms. He
      continues to have right knee pain close to seven weeks out from his initial
      work event, and physiologically a right knee sprain with no acute ligament
      tear is expected to resolve in that time frame. He even had 12 PT sessions
      in the interim, which point towards the fact that his current pain is being
      generated by chronic changes of his knee. It is my opinion, therefore, that
      in isolation, the work event is not the major contributing factor to his
      current right knee symptoms.

!d.

      Dr. Fowler examined Mr. Taylor on April 21, 2015. (Ex. 1 at 38.) He

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recommended continuing physical therapy and anti-inflammatories, while limiting Mr.
Taylor to "sedentary work only until follow-up appointment in about three weeks." (Ex. 1
at 40.) Upon Mr. Taylor's return visit on May 13, 2015, Dr. Fowler injected the injured
right knee. (Ex. 1 at 43.) He added that he "discussed the case with Dr. [Timothy]
Jenkins, and we will try [the injection] first and try arthroscopic surgery if [the injection]
does not give him some improvement." !d.

       On May 14, 2015, TEC determined it could no longer accommodate Mr. Taylor's
work restrictions. (Ex. 2 at 2.) Dr. Fowler completed FMLA paperwork for Mr. Taylor on
May 15, 2015. (Ex. 1 at 44.) Among his findings, Dr. Fowler stated Mr. Taylor's
condition was not due to a work-related injury. !d. He added that Mr. Taylor "was not
given work restrictions until 4/21/15. Was not getting better, and needed rest to help
healing time."

       Dr. Jenkins evaluated Mr. Taylor on May 27, 2015. (Ex. 1 at 49.) Mr. Taylor
continued to experience pain in his knee, as the injection only helped briefly. (Ex. 1 at
51.) Dr. Jenkins stated Mr. Taylor "relates today that he had no knee problems prior to
his injury at work." !d. This statement from Dr. Jenkins is the first reference in the
Watauga medical records to a work-related cause of Mr. Taylor's right-knee condition.
Dr. Jenkins recommended a "knee arthroscopy diagnostic [sic] with synovectomy and
possible meniscectomy as necessary." !d. On June 9, 2015, Dr. Jenkins performed a right-
knee plica excision surgery on Mr. Taylor's right knee. (Ex. 1 at 52.) Mr. Taylor has
since returned to full-duty work at TEC.

       On July 4, 2015, Dr. Jenkins responded to a questionnaire submitted by Mr.
Taylor's attorney, which asked, "Is it your opinion, within a reasonable degree of medical
certainty, that Mr. Taylor's fall on March 10, 2015, directly resulted in his injury and
existing surgery?" Dr. Jenkins responded by checking the answer, "Yes." (Ex. 1 at 148.)

       TEC filed its response to the PBD on April 30, 2015. The parties did not resolve
the disputed issues through mediation, and the Mediating Specialist filed the DCN on
May 29, 2015. Mr. Taylor filed an REH on July 8, 2015.

                                 Mr. Taylor's Contentions

        Mr. Taylor contends he suffered an injury to his right knee as a result of a work-
related fall on March 10, 2015. Mr. Taylor argues that, when he repeatedly told his
superiors that his knee remained sore, TEC should have provided him with a panel of
physicians instead of sending him to the on-site medical providers. When it did not, Mr.
Taylor asserts he acted reasonably when he sought treatment at Watauga. Mr. Taylor
requests the Court find his claim compensable and hold TEC liable for his past treatment
at Watauga, and any on-going reasonable, necessary treatment he may require for his
work injury. He also asks that the Court establish Dr. Jenkins his authorized treating

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physician.
                                   TEC's Contentions

       TEC questions whether Mr. Taylor's right-knee condition arose from the alleged
work accident of March 10, 2015. In support of its position, TEC points out the Watauga
medical records reference a date of injury of March 9, 2015, and contain notations the
injury was not work-related. Moreover, Mr. Taylor relied on his personal health
insurance to pay for this treatment at Watauga, which TEC asserts also places causation
into question. TEC additionally argues it repeatedly asked Mr. Taylor whether he
required further medical treatment apart from the on-site medical care, and each time, Mr.
Taylor refused. TEC asserts Mr. Taylor refused the offer of treatment, because he was
treating at Watauga, while keeping that information from TEC. TEC argues Mr. Taylor
did not give it an opportunity to provide a physician panel until he filed the PBD, in
response to which TEC immediately provided a panel.

       TEC relies on Tennessee Code Annotated section 50-6-102(13)(E) (2014) and the
opinion of Mr. Taylor's panel-selected physician, Dr. Kakkar, who determined Mr.
Taylor's work did not contribute more than 50% to his right-knee condition. TEC points
out that, according to the referenced statute, the opinion of the panel-selected physician is
presumed correct on the issue of causation. It argues the balance of the medical
information, including Dr. Jenkins' mere checking of a "Yes" response, is insufficient to
rebut that presumption. TEC asks the Court to deny Mr. Taylor's request for workers'
compensation benefits.

                        Findings of Fact and Conclusions of Law

                                    Standard Applied

       The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party, but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor employer.
Tenn. Code Ann. § 50-6-116 (2014). An employee need not prove every element of his or
her claim by a preponderance of the evidence in order to obtain relief at an expedited
hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
At an expedited hearing, an employee has the burden to come forward with sufficient
evidence from which the trial court can determine that the employee is likely to prevail at
a hearing on the merits. !d.

                                    Factual Findings

      Whether Mr. Taylor's right-knee condition occurred as the result of an unknown
cause on March 9, 2015, or as the result of the alleged work accident the following day,

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remains unresolved. TEC did not provide Mr. Taylor with a panel of physician upon his
assertion of a work injury on March 10,2015, but supplied him with on-site medical care.
TEC repeatedly inquired as to the status of Mr. Taylor's condition, and asked him
whether he required treatment beyond on-site medical. Mr. Taylor responded he did not
require further treatment at the same time he was treating at Watauga Orthopedics,
unbeknown to TEC. Mr. Taylor filed a PBD with the Bureau on April 14, 2015,
requesting medical treatment. TEC promptly responded with a panel of physicians, from
which Mr. Taylor selected Dr. Kakkar on April 16, 2015. Dr. Kakkar determined Mr.
Taylor's alleged work accident of March 10, 2015, did not contribute more than 50% to
his right-knee condition. Dr. Jenkins, the unauthorized physician who performed surgery
on Mr. Taylor's injured right knee, determined, "Mr. Taylor's fall on March 10, 2015,
directly resulted in his injury and existing surgery." Following surgery, Mr. Taylor
returned to work for TEC at full duty.

                              Application of Law to Facts

        The Workers' Compensation Law defines "injury" and "personal injury" to mean
an injury by accident "arising primarily out of and in the course and scope of
employment[.]" Tenn. Code Ann. § 50-6-102(13)(A) (2014). An injury is "accidental"
only if it is caused by a specific incident, or set of incidents, arising primarily out of and
in the course and scope of employment, and is identifiable by time and place of
occurrence and shall not include the aggravation of a preexisting disease, condition or
ailment, unless it can be shown to a reasonable degree of medical certainty that the
aggravation arose primarily out of and in the course and scope of employment[.] !d. An
injury "arises primarily out of and in the course and scope of employment" only if it has
been shown "by a preponderance of the evidence that the employment contributed more
than fifty percent (50%) in causing the injury, considering all causes[.]" Tenn. Code Ann.
§ 50-6-102(13)(B) (2014).

       The panel-selected physician in this case, Dr. Kakkar, concluded the work incident
ofMarch 10, 2015, has not contributed more than 50% to the cause of Mr. Taylor's right-
knee condition. Pursuant to Tennessee Code Annotated section 50-6-102(13)(E) (2014),
"[t]he opinion of the treating physician, selected by the employee from the employer's
designated panel of physicians pursuant to§ 50-6-204(a)(3), shall be presumed correct on
the issue of causation, but his presumption shall be rebuttable by a preponderance of the
evidence."

        Dr. Kakkar provided a detailed explanation to support his opinion against a work-
related cause. The primary medical evidence Mr. Taylor presented to attempt a rebuttal of
Dr. Kakkar's finding against work-relatedness is the July 4, 2015 opinion of Dr. Jenkins.
Dr. Jenkins did not set out an explanation of his conclusion. Rather, he simply checked
"Yes" in response to Mr. Taylor's attorney's question regarding cause. The Court notes
some defects in the question presented to Dr. Jenkins. Mr. Taylor's "fall" is not described

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as work-related. Dr. Jenkins is not asked to consider all causes or to opine that a work
accident contributed more than 50% in causing Mr. Taylor's injury, as the above-
referenced statute requires. The Court determines Dr. Jenkins' opinion on causation is
insufficient to rebut Dr. Kakkar's assessment.

       The balance of the Watauga medical records is also insufficient to rebut Dr.
Kakkar' s statement on causation. The records repeatedly reference a date of injury of
March 9, 2015. While it is possible that the date of injury was entered erroneously, it is
equally possible that Mr. Taylor communicated a different date of injury to the Watauga
providers. Also, the medical records consistently record that Mr. Taylor's condition was
not a work-related injury. Dr. Fowler repeated this fact in the FMLA form he completed
for Mr. Taylor. Dr. Jenkins' notation on May 27, 2015, that Mr. Taylor "relates today that
he had no knee problems prior to his injury at work," constituted the first reference to a
work-related injury in the Watauga medical records. No further explanation followed.

       Based on the information presently available, the Court finds Mr. Taylor has not
presented sufficient evidence from which the Court can determine he is likely to prevail
at a hearing on the merits. In light of the insufficient medical proof regarding causation,
the issues of whether the parties acted appropriately when Mr. Taylor declined TEC's
offer of treatment beyond on-site medical, and TEC failed to provide a panel of
physicians upon Mr. Taylor's expressed desire for treatment, are moot. At this stage in
the proceedings, the Court denies Mr. Taylor's request for additional medical benefits.

IT IS, THEREFORE, ORDERED as follows:

       1. Mr. Taylor's request for medical treatment is denied.

       2. This matter is set for a Scheduling Hearing on October 13, 2015, at 3:30p.m.
          Eastern Time.



                                   ENTERED this the 31st day of August, 20 15.

                                        fc.-- c         ~ (__ __
                                   Judge Brian K. Addington    D
                                   Court of Workers' Compensation


Initial (Scheduling) Hearing:

       An Initial Hearing has been set with Judge Addington, Court of Workers'

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Compensation Claims. You must call 865-594-6538 or toll free at 855-543-5044 to
participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date/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).




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:


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

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

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of lndigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of
      lndigency in accordance with this section shall result in dismissal of the
      appeal.

   5. 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 calendar days of the filing of the Expedited

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       Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
       the evidence within ten calendar days of the filing of the Expedited Hearing
       Notice of Appeal. The statement of the evidence must convey a complete and
       accurate account of what transpired in the Court of Workers' Compensation Claims
       and must be approved by the workers' compensation judge before the record is
       submitted to the Clerk of the Appeals Board.

   6. 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 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 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
Denying Medical Benefits was sent to the following recipients by the following methods
of service on this the 31st day of August, 20 15.


Name                       Certified    Via         Via    Service sent to:
                            Mail        Fax        Email
 David Miller, Esq.                                 X      dmillerlawcmembarqmail.com
 Bradley Griffith, Esq.                             X      bgriffith@lawyerfirm.com




                                         Penny Shrum, Clerk of Court
                                         Court of Workers' Compensation Claims
                                         WC.CourtCierk@tn.gov




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