              TENNESSEE BUREAU OF WORKERS’ COMPENSATION
             IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                              AT NASHVILLE

REGINALD WATSON,                                          )    Docket No. 2015-06-1358
         Employee,                                        )
v.                                                        )    State File No. 93345-2015
LABOR SMART,                                              )
         Employer,                                        )    Judge Joshua Davis Baker
and                                                       )
                                                          )
SUNZ INSURANCE,                                           )
         Insurer.                                         )
                                                          )

                AMENDED EXPEDITED HEARING ORDER GRANTING
                     TEMPORARY DISABILITY BENEFITS


        This matter came before the undersigned workers’ compensation judge on the
Request for Expedited Hearing filed by the employee, Reginald Watson, pursuant to
Tennessee Code Annotated section 50-6-239 (2016). The present focus of this case is
whether Labor Smart must provide Mr. Watson with temporary disability benefits from
September 1, 2016, to the present. The central legal issue is whether Mr. Watson can
demonstrate a likelihood of success at a trial on the merits of this issue. For the reasons
set forth below, the Court finds Mr. Watson is likely to succeed at a hearing on the merits
in proving entitlement to temporary disability benefits based on the evidence presented at
this time.1

                                               History of Claim

       Mr. Watson is a fifty-one-year-old resident of Davidson County, Tennessee. He
worked for Labor Smart, a temporary staffing agency, in various assignments. Personnel
records from Labor Smart showed Mr. Watson worked as a part-time employee of the
company. (Ex. 7.) On Saturday, July 18, 2015, Labor Smart assigned Mr. Watson to

1
 A complete listing of exhibits and the technical record admitted at the Expedited Hearing is attached to this Order
as an appendix.

                                                          1
work at Two Men and A Truck, a moving company. On that day, Mr. Watson was using
a dolly to unload furniture from a van when he stepped off the side of the truck ramp and
fell to the ground, injuring his head and back. Brandon, an on-site supervisor, and
another employee were present at the time of the incident. Mr. Watson’s back and head
pain required him to sit down the remainder of the day, and his fiancée, Michelle
Goodner, drove him home from work that afternoon.

       The following morning, Mr. Watson presented at Nashville General Hospital
emergency department complaining of right hip, back, and left neck pain from falling at
work the day before. (Ex. 2 at 1.) His physical examination indicated no evidence of
head trauma and a non-tender neck with painless range of motion. Id. at 4. Mr. Watson
indicated it was painful to bear weight on his right leg. Id. at 6. Although the medical
records do not mention a head injury, Mr. Watson testified he told the emergency room
physician, Dr. Rex Sparks, that he hit his head when he fell.

       At trial, Mr. Watson testified that on July 20, he presented the hospital papers to
Matt Jaggers, his Labor Smart supervisor. Mr. Watson testified he believed Mr. Jaggers
would complete an accident report and someone at Labor Smart would contact him about
medical care. Mr. Watson also testified that, in the days following his delivery of the
papers, he told managers at Labor Smart he needed medical treatment, but he received
none.

       Mr. Watson returned to Nashville General Hospital on August 2 complaining of
increased low-back pain. Id. at 20. Medical records indicated decreased range of motion
in his back and a diagnosis of low back strain. The records also indicated complaints of
headache since the July 2015 work incident. Id. at 35. Because of Mr. Watson’s
headache complaints, he underwent a CT scan, which yielded normal results. Id. at 42.

       Mr. Watson testified that after his injury he tried to return to work at Labor Smart
because it was his only means of support. He stated, however, that he could no longer
perform physical labor jobs because his back and head pain were “killing him.” This
resulted in Labor Smart reducing the number of placements and works hours it offered
Mr. Watson. September 1 was the last day he worked for Labor Smart, and he testified
he has been physically unable to work, due to his headaches and back pain, since he left
Labor Smart.

       In October 2015, Mr. Watson sought treatment at Neighborhood Health Clinic.
Dr. Jule West diagnosed back pain and chronic headache from falling off the back of a
moving truck and hitting his back, hip, and head. (Ex. 1 at 1.) Dr. West referred Mr.
Watson for brain and spine MRIs. Mr. Watson’s brain MRI was normal except for “very
mild parasinus disease;” his neck MRI showed two small areas of bulging discs “C4-C5,
C5-C6;” and the lumbar MRI showed “paracentral disc protrusion (L5-S1).” Id. at 20.


                                            2
       He continued to treat with Dr. West and saw her approximately eight times. Dr.
West’s medical notes reflect Mr. Watson complained of constant headaches caused by
vision problems and bright lights. Id. at 19. She prescribed muscle relaxers and
medication, and eventually referred Mr. Watson to Dr. Nandakum B. Vittal, a
neurologist, for his headaches. Id. at 25. Dr. Vittal suggested occipital nerve blocks for
headache relief, but Mr. Watson testified he has not undergone this treatment
recommendation because of the cost.

      On June 1, 2016, Dr. West wrote:

      This patient has been in my primary care since October 5, 2015.

      I am asked to comment on diagnoses and injuries sustained and resulting
      from a traumatic fall from the back of the truck (which did include head
      injury and loss of consciousness) on July 18, 2015, per Mr. Watson. I was
      not caring for Mr. Watson at that time. I became his primary care provider
      on October 5, 2015. I cannot comment on initial injuries, evaluation,
      worked up, imaging or treatment.

      Imaging obtained by me November 5, 2015[,] demonstrated bulging disc’s
      [sic] at cervical vertebrae C4-5 and C5-6 per cervical MRI. Brain MRI was
      normal. Lumbar MRI obtained 11/17/15 demonstrated paracentral disc
      protrusion L5-S1, mild narrowing left neuroforaminal. In lieu of physical
      therapy, Mr. Watson has been doing aqua classes at the YMCA.

      As I am not a spine expert, I cannot comment on medical certainty that the
      abnormalities result from trauma, however it is possible the impact and fall
      are responsible.

      I can say, with a reasonable degree of medical certainty, that Mr. Watson
      has had severe and persistent posttraumatic headache since the time of
      injury. This has required extensive evaluation by neurology and multiple
      modalities to control pain. Currently it would be impossible for Mr.
      Watson to sustain any consistent and regular employment secondary to pain
      and lack of function due to his headaches.

      He is currently undergoing medical treatment per neurology and per those
      records, the next and last intervention prior to reaching maximum medical
      treatment will be bilateral greater occipital nerve block (to attempt pain
      control for headache) per Dr. Vittal, neurologist at Nashville General
      Hospital.

Id. at 29. (Emphasis added.) In addition to this medical note, Dr. West also completed a

                                            3
questionnaire where she causally related Mr. Watson’s headaches and his inability to
work to his July 18, 2015 accident. (Ex. 5.)

      At the expedited hearing, Mr. Watson testified that prior to his injury he had no
problems with his lower back, headaches, or difficulties with his vision. Since the fall, he
has sensitivity to bright light and loud noise and suffers from constant headaches. He
also had two blackouts, which he attributes to his headaches. He testified he never
blacked-out before the July 18, 2015 injury.

       Mr. Watson testified he had received no income since September 1. He was
forced to borrow money from family members. He also sold his tools, valued at about
$5,000, for $600 because he needed the money. Mr. Watson was denied unemployment
benefits because he was not physically able do any job for which he qualified.

       Mr. Watson testified that on the day of the expedited hearing, he saw Dr.
Strickland as an authorized treating physician from a panel offered by Labor Smart. This
was the first time he saw an authorized physician in the approximately fourteen months
since his accident. The only medical treatment Labor Smart paid for prior to that time
was his initial hospital visit. It was only after hiring an attorney that Mr. Watson received
two panels, one for a neurologist and one for an orthopedic surgeon.

      Mr. Watson testified an ombudsman at the Bureau helped him complete his PBD,
which explains the different handwriting on the form. He completed the employee
information part, but not the explanation of issues section that omitted his headaches.

       Ms. Goodner testified she has known Mr. Watson for six years and they live
together in the same home. On the date of injury, Mr. Watson returned home from work
and “didn’t look right.” Ms. Goodner noticed Mr. Watson had a knot on his head. Since
his injury, Ms. Goodner stated Mr. Watson is unable to do anything and his head
constantly hurts. She has to remind him to take his medicine and drive him to his doctor
appointments. She stated he needs assistance getting in and out of a bed or a vehicle, he
cannot do his daily activities, and he has difficulty sleeping. Before the injury he slept
well, had no depression, enjoyed working, and entertained friends. Ms. Goodner said
they no longer have company or entertain since the injury.

       Labor Smart argued medical records fail to substantiate the several injuries Mr.
Watson now claims. Hospital emergency room records from July 19, 2015, show Mr.
Watson complained of right hip pain, instead of left hip pain as he now claims. (Ex. 2 at
1.) In addition, medical records after the work incident show no report of having any
head injury or headaches. Id. at 4.

     Labor Smart also argued that Mr. Watson’s PBD filed with the Bureau on
December 28, 2015, only described injuries to his neck and lower back, with no mention

                                             4
of headaches or any head injury from hitting his head on concrete. (T.R. 3.) Medical
records document that in November Dr. Vittal ordered an MRI of Mr. Watson’s head,
and the MRI diagnosed perinasal sinus disease, which has no relationship to any
workplace event. (Ex. 1 at 41.) One of the symptoms of perinasal sinus disease is
headaches.

                       Findings of Fact and Conclusions of Law

       I.     Labor Smart failed to provide Mr. Watson timely medical care.

        There are several issues of concern in this case. In particular, the amount of time
between Mr. Watson’s injury and Labor Smart’s provision of medical care is concerning.
Upon being provided notice of a workplace injury, the Workers’ Compensation Law
requires an employer to “designate a group of three (3) or more independent reputable
physicians, surgeons, chiropractors or specialty practice groups if available in the injured
employee’s community or, if not so available, in accordance with subdivision (a)(3)(B),
from which the injured employee shall select one (1) to be the treating physician.” Tenn.
Code Ann. § 50-6-204(a)(3)(A)(i) (2016). The administrative rules governing procedures
in the Bureau of Worker’s Compensation provide, “[u]pon notice of any workplace
injury, other than a minor injury for which no person could reasonably believe requires
treatment from a physician, the employer shall immediately provide the injured employee
a panel of physicians that meets the statutory requirements for treatment of the injury.”
Tenn. Comp. R. & Regs. 0800-02-01-.25(1) (2016). Failure to provide a panel could
result in the assessment of a civil penalty of up to $5,000 against the employer. See
Tenn. Comp. R. & Regs. 0800-02-01-.25(1) (2016).

        Here, Labor Smart did not timely provide Mr. Watson panels of physicians. Mr.
Watson’s accident occurred on July 18, 2015, and there is no dispute that the accident
occurred and Labor Smart had notice of its occurrence. Despite its notice of the injury,
Mr. Watson saw a physician for the first time on the day of the hearing, more than a year
after the accident occurred. Because Labor Smart failed to timely provide medical care.
The Court refers this matter to the penalty unit to consider whether Labor Smart should
be assessed a civil penalty for its delay in providing Mr. Watson a panel.

       Additionally, because Labor Smart failed to provide timely medical care, Mr.
Watson could have asked that he be allowed to continue treating with Drs. West and
Vitale. If an employer fails to provide a panel, it risks having to pay for all reasonable
and necessary medical expenses incurred by an employee for treatment with an
unauthorized physician and also risks having to provide continuing care with the
unauthorized physician. See McCreary v. Yasuda Fire & Marine Ins. Co. of Amer., No.
01S01-9507-CH-00106, 1996 Tenn. LEXIS 102, at *5-6 (Tenn. Workers’ Comp. Panel
Feb. 20, 1996); Young v. Young Electric, No. 2015-06-0860, 2016 TN Wrk. Comp. App.
Bd. LEXIS 24 at *16-17 (Tenn. Workers’ Comp. App. Bd. May 25, 2016) (Holding that

                                             5
the employer who failed to set an appointment with the panel physician was required to
provide continued care with the unauthorized physician who treated the employee.).
However, at the outset of the hearing, the parties agreed that only temporary disability
benefits are at issue, so the Court will not address medical care.

       II.    Mr. Watson is entitled to temporary disability benefits.

       Mr. Watson seeks temporary total disability benefits for the period of time Dr.
West indicated he was unable to work following the accident. In order to recover
temporary total disability benefits, Mr. Watson must show (1) he is totally disabled and
unable to work due to a compensable injury, (2) the work injury and inability to work are
causally connected, and (3) the duration of the disability. Gray v. Cullom Mach., Tool &
Die, Inc., 152 S.W.3d 439, 443 (Tenn. 2004); Jewell v. Cobble Constr. and Arcus
Restoration, No. 2014-05-0003, 2015 TN Wrk. Comp. App. Bd. LEXIS 1, at *21 (Tenn.
Workers’ Comp. App. Bd. Jan. 12, 2015). An employee may recover temporary total
disability benefits until the employee is able to return to work or attains maximum
medical improvement. Prince v. Sentry Ins. Co., 908 S.W.2d 937, 939 (Tenn. 1995).
While it is a close issue, the Court finds Mr. Watson carried his burden of proving a
likelihood of success at a hearing on the merits in proving that his workplace accident
rendered him unable to work.

       In her causation letter, Dr. West indicated Mr. Watson could not work from July
18, 2015, until the present due to debilitating headaches that resulted from his workplace
accident. (Ex. 5.) In her medical note, Dr. West indicated that an MRI of Mr. Watson’s
brain was “normal.” (Ex. 1 at 29.) She also acknowledged that Mr. Watson has spinal
trauma as indicated on the MRI but stated, “[a]s I am not a spine expert, I cannot
comment on medical certainty that the abnormalities result from trauma, however it is
possible the impact and fall are responsible.” Id. The combination of the these two
statements indicates to the Court that Dr. West is unsure whether the headaches Mr.
Watson has are coming from his head or from his neck injuries. Despite this apparent
uncertainty, Dr. West responded definitively that his headaches, more likely than not,
resulted primarily from his workplace accident and that his injuries prevent him from
working. (Ex. 5.) The Court has no other medical opinion at this time.

       In addition to the medical testimony, the lay testimony also showed the Mr.
Watson cannot work. Tennessee courts have long held that the employee’s credible
testimony of injury is relevant to the determination of the work-relatedness of an injury.
See Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991); Tindall v.
Waring Park Ass’n, 725 S.W.2d 935, 937 (Tenn. 1987). Mr. Watson and Ms. Goodner
both testified to his physical condition after the fall and his inability to work. The Court
finds their testimony credible.

       For his part, Mr. Watson complained of headaches and syncope episodes that

                                             6
occurred after the fall. He also testified he did not have headaches and had not passed out
prior to the accident. He further testified he has been unable to work since leaving his
employment with Labor Smart on September 1, 2015, due to his headaches and back
pain. Additionally, even though Mr. Watson has been without income for an extended
period of time, he chose to sell his tools rather than seek income through work, which
indicates to this Court that he is unable to maintain employment.

       In addition to Mr. Watson’s testimony, Ms. Goodner testified that Mr. Watson has
been unable to do anything since the accident and has constant headaches. Furthermore,
Mr. Watson, who worked consistently before the accident, was denied unemployment
benefits because he cannot perform work in his injured condition.

        In consideration of all these factors, the Court finds Mr. Watson is likely to prevail
at a hearing on the merits in proving his workplace accident has rendered him unable to
work from the time he left his employment with Labor Smart on September 1, 2015,
through the date of this order. Such payments shall continue until Mr. Watson is released
to return to work or placed at maximum medical improvement.

       Mr. Watson asserted that benefits should be paid at the maximum compensation
rate because Labor Smart failed to timely file a wage statement. He argued that the prior
law gave the Court authority to order payment at the maximum rate under such
circumstances. See Tenn. Code Ann. § 50-6-201(c) (2011). While Mr. Watson admitted
the provision providing for payment at the maximum compensation rate was removed
from the law during the 2013 reform of the Workers’ Compensation Law, he nonetheless
argued that this Court still has discretion to order payment at the maximum compensation
rate. The Court disagrees.

       “The Workers’ Compensation Law is entirely a creature of statute, and the rights
and responsibilities of the parties are derived solely from the statutes.” Cooper v.
Logistics Insight Corp., 395 S.W.3d 632, 640 (Tenn. 2013). Because the law is statutory,
the legislature may adjust the benefits available as it sees fit. Here, the legislature
determined it would no longer require an employer who fails to timely file a wage
statement to pay benefits at the maximum compensation rate. Labor Smart shall pay Mr.
Watson temporary disability benefits at 66 2/3% of his average weekly wage.

       Here, the personnel records showed that Mr. Watson worked intermittently for
Labor Smart from May 27 through September 1, 2015, a period of fourteen weeks.
During that period of time, he worked anywhere from six hours to thirty-two and a half
hours per week. (Ex. 7.) Based on this information, the Court finds Mr. Watson worked
as a part-time employee for Labor Smart. The average weekly wage of a part-time
“should be determined by dividing the total actual wages of the 52-week period by the
number of weeks in which the employee received wages.” Russell v. Genesco, 651
S.W.2d 206, 208 (Tenn. 1983) (citing McKinney v. Feldspar Corp., 612 S.W.2d 157

                                              7
(Tenn. 1981); Gaw v. Raymer, 553 S.W.2d 576 (Tenn. 1977)).

       Upon review of the personnel records, the Court finds Mr. Watson received wages
in twelve of the fourteen weeks. He received a total of $2,392.31 for working those
twelve weeks resulting in average weekly wage of $199.36, and a compensation rate of
$132.91 per week.

IT IS, THEREFORE, ORDERED as follows:

   1. Labor Smart shall pay Mr. Watson accrued temporary total disability benefits from
      September 2, 2015, through the date of this order—a period of sixty-eight weeks
      and one day—for a total accrued benefit of $9,056.87. Labor Smart shall also
      continue benefit payments until Mr. Watson is no longer eligible to receive them.

   2. Tom Tucker, counsel for Mr. Watson, has provided good and valuable services
      and is entitled to a fee equaling twenty-percent of the accrued temporary disability
      benefits or, $1,811.37.

   3. Labor Smart shall provide documentation of why it should not be assessed a civil
      penalty pursuant to Tennessee Code Annotated section 50-6-205(b)(3) for its
      failure to timely pay temporary disability benefits within seven business days of
      entry of this order.

   4. This matter is set for a Scheduling Hearing on February 13, 2017, at 10:00 a.m.
      (CDT). The Court will convene the Scheduling Hearing via teleconference. You
      must call 615-741-2113 or toll-free at 855-874-0474 to participate in the Initial
      Hearing.

   5. The clerk shall forward a copy of this order to the penalty unit for consideration of
      a civil penalty against Labor Smart for its failure to provide timely medical care.

   6. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
      with this Order must occur 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)
      (2016). The Insurer or Self-Insured Employer must submit confirmation of
      compliance      with    this     Order    to    the    Bureau    by    email      to
      WCCompliance.Program@tn.gov no later than the seventh 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.

   7. For questions regarding compliance, please contact the Workers’ Compensation
      Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
      253-1471 or (615) 532-1309.

                                            8
ENTERED ON THIS THE 22nd DAY OF DECEMBER, 2016.

                        _____________________________________
                        Judge Joshua Davis Baker
                        Court of Workers’ Compensation Claims




                               9
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 Indigency, 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
      Indigency 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
      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 appellant shall file such position statement with the Court Clerk within
      three business days of the expiration of the time to file a transcript or statement of
      the evidence, specifying the issues presented for review and including any
      argument in support thereof. A party opposing the appeal shall file a response, if

                                            10
any, with the Court Clerk within three business days of the filing of the appellant’s
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.




                                     11
                                              APPENDIX

Exhibits:

    1.   Medical records filed
    2.   Medical records filed
    3.   Mr. Watson’s affidavit
    4.   Michelle Goodner’s affidavit
    5.   Dr. Jule West medical report
    6.   Wage statement and hours printout
    7.   First Report of Injury

Technical record:2

    1. Petition for Benefit Determination
    2. Dispute Certification Notice
    3. Request for Expedited Hearing
    4. Division of Employment Security Agency Decision denying unemployment
       benefits
    5. Medical Certificate/Unemployment Insurance Benefits
    6. Mr. Watson’s position statement
    7. Labor Smart’s Response to Request for Expedited Hearing




2
  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.

                                                     12
                            CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing was sent to the
 following recipients by the following methods of service on this the 22nd day of
 December, 2016.

Name              Cert   First   Via   Fax      Via     Email Address
                  Mail   Class   Fax   Number   Email
                         Mail
Thomas W.                                       x       tomtucker@bellsouth.net
Tucker III

Jordan Puryear,                                 x       jordan.puryear@leitnerfirm.com
Attorney



                                         _____________________________________
                                         Penny Shrum, Clerk of Court
                                         Court of Workers’ Compensation Claims
                                         WC.CourtClerk@tn.gov




                                          13
