                                                                                  FILED
                                                                                Dec 20, 2019
                                                                                07:23 AM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT KNOXVILLE

KENNETH FRIEND,                             )    Docket Number: 2019-03-1017
         Employee,                          )
v.                                          )
STAPLES,                                    )    State File Number: 46052-2019
         Employer,                          )
and                                         )
AGRI GENERAL INSURANCE                      )    Judge: Brian K. Addington
COMPANY,                                    )
         Insurance Carrier.                 )


                           EXPEDITED HEARING ORDER


       Kenneth Friend alleged he suffered an injury while working for Staples. He seeks
medical and temporary total disability benefits. After the expedited hearing on December
13, 2019, the Court holds that Mr. Friend is likely to prevail at a hearing on the merits
that he suffered an injury arising primarily out of employment. The Court awards
medical benefits but denies temporary disability benefits at this time.
                                      Claim History
       Mr. Friend worked as a sales manager for Staples. On June 19, 2019, his job
required him to sit on his heels while he changed merchandise in the store's planograms.
At some point during the day, he noticed knee pain after getting up from the floor.
Although he did not describe a specific incident, he reported the pain to a co-worker. He
also joked about his age and pain from working with the store manager, Audrey
Henderson, but she did not file an injury report that day.
       The next day, as he continued to work on his knees, he noticed increased right-
knee pain but finished his shift. When he awoke on June 21, his day off, he noticed his
right knee was swollen. When he returned to work on the 22nd, he reported to Ms.
Henderson that his knee hurt severely. She told him that reporting a work injury would
cause a $3,000.00 loss to the store, but she nevertheless instructed him to call its third-
party administrator to start a claim.

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       An adjuster instructed Mr. Friend to go to the emergency room, where he
described right-knee pain after twisting at work. The providers diagnosed soft-tissue
fullness and joint effusion. They referred him to orthopedist Dr. Todd Griffith.
       Mr. Friend told Dr. Griffith that he performed a great deal of squatting and
twisting on June 19 and 20 and developed right-knee pain. Dr. Griffith ordered an MRI,
which indicated a medial meniscus tear. On July 5, Dr. Griffith recommended
arthroscopic repair and took Mr. Griffith off work. Instead of approving the surgery,
Staples denied his claim.

       Because he could not work, Mr. Friend sought short-term disability benefits.
Staples started paying these benefits through the company. The parties dispute how
much he was paid. He also works with his family's barbecue business 1 despite his knee
pam.

       Because of this pain, Mr. Friend uses crutches, although he does not need them all
the time. 2 He is willing to undergo the surgery Dr. Griffith recommended.
       Concerning Dr. Griffith, both parties sent him causation letters. Dr. Griffith
responded to Staples's letter first, stating that Mr. Friend suffered an acute medial
meniscus tear and MCL sprain. Dr. Griffith described how the work caused the injury in
this manner, "Squatting and twisting at work on 6119 & 6/20. Within 24 hours, had
effusion. Hyperflexed knee w/twist puts stress on posterior hom of medial meniscus and
MCL-the injuries noted on MRl & exam."
      Dr. Griffith responded to Mr. Friend's counsel's letter answering "yes" to Mr.
Friend's work being more than fifty percent the cause of his right meniscal tear
considering all causes; the injury was acute; and symptoms from an acute meniscal tear
may worsen over time.

       Mr. Friend argued that he is likely to prove he suffered an injury primarily caused
by his work, even though he cannot point to the exact instance his injury occurred.
Staples countered that Mr. Friend's inability to describe a particular accident defeats his
claim.

                              Findings of Fact and Conclusions of Law
       To receive benefits, Mr. Friend must present sufficient evidence that he is likely to
prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019);
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015).

1
  Mr. Friend greets customers, takes and fills orders, and sets up and tears down equipment. He earns
income from the business.
2
    The Court reviewed a lengthy surveillance video that confirmed these facts.

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       The threshold issue is whether Mr. Friend suffered an injury as defined in the
Workers' Compensation Law. Tennessee Code Annotated section 50-6-102(14)(A)
provides that an injury is "accidental" only if the injury is caused by a "specific incident
or set of incidents means arising primarily out of and in the course and scope of
employment[.]" Staples argued Mr. Friend cannot prove an incident or set of incidents at
work caused his injury. The Court disagrees.

       Mr. Friend told his co-worker and supervisor that he injured his knee at work. He
told his medical providers that his injury happened while squatting and twisting at work.
Dr. Griffith agreed that his injury was consistent with these actions. Nevertheless,
Staples argued that he must be more specific as to the time the injury occurred.

       The Court is not sure how he could be more specific. He testified that getting up
and down from the floor on June 19 caused pain. He testified that he did the same work
the following day and experienced increased right-knee pain after twisting his leg to
stand up. That night, he experienced swelling. Dr. Griffith said this activity primarily
caused Mr. Friend's medial meniscal tear, and Staples presented no evidence that Mr.
Friend injured his leg elsewhere. The evidence establishes that the incident or set of
incidents at work caused his injury. Thus, the Court holds Mr. Friend is likely to prove at
a hearing on the merits that his right-knee condition arose primarily out of his
employment with Staples.
       In light of this conclusion, the Court turns first to Mr. Friend's request for medical
benefits. Dr. Griffith, the authorized physician, recommended surgery. Mr. Friend is
willing to undergo it. The Court holds that Mr. Friend is likely to prove that Dr.
Griffith's recommendations are necessary and reasonable to treat his condition, as it is the
only medical opinion concerning the issue.

       Next, Mr. Friend requested past temporary disability benefits from the date of
injury. To establish entitlement, he must show he (1) became disabled from working due
to a compensable injury, (2) a causal connection between the injury and his inability to
work, and (3) the duration of the period of disability. Jones v. Crencor Leasing and
Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015).
        Staples paid Mr. Friend's wages through July 5 as he continued to work. Dr.
Griffith took Mr. Friend off work that day, but he applied for and continues to receive
short-term disability benefits from Staples. The Court notes that Staples is entitled to set
off any temporary disability benefits from any payment under an employer-funded
disability plan. See Tenn. Code Ann. § 50-6-114(b). Mr. Friend also worked for his
family's barbecue business for several weeks after the injury, which would also serve to
reduce or exclude any temporary disability benefits. Under these circumstances, the
Court denies Mr. Friend's request for temporary disability benefits at this time.




                                              3
IT IS THEREFORE ORDERED AS FOLLOWS:

  1. Staples shall approve the knee surgery Dr. Griffith recommended and provide
     further medical benefits under Tennessee Code Annotated Section 50-6-204.

  2. Mr. Friend's request for temporary disability benefits is denied at this time.

  3. This case is set for a Scheduling Hearing on February 20, 2019, at 1:00 p.m., ET.
     Call toll-free at 855-543-5044 to participate in the hearing. Failure to call might
     result in a determination of the issues without your participation.

  4. 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)
     (2019). The Insurer or Self-Insured Employer must submit confirmation of
     compliance      with    this     Order    to    the   Bureau     by     email    to
     WCCompliance.Prograrn f. 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.

  5. For questions regarding compliance, please contact the Workers' Compensation
     Compliance Unit via email WCCompliance.Program@tn.gov.


ENTERED December 20, 2019.



                                          IS/ Brian K. Addington
                                         BRIAN K. ADDINGTON, JUDGE
                                         Court of Workers' Compensation Claims




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                                     APPENDIX

Exhibits:

1. Kenneth Friend's Affidavit
2. First Report of Injury
3. Wage Statement
4. Medical Records-Blount Memorial Hospital
5. Medical Records-Ortho Tennessee
6. Employee's Questionnaire to Dr. Todd Griffith
7. Sworn Declaration of Records Custodian
8. Photograph
9. Work Status Note of Dr. Todd Griffith
10. Employer's Questionnaire to Dr. Todd Griffith
11. Surveillance Video

Technical Record:

1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employee's Brief in Support of Employee's Request for an Expedited Hearing
5. Affidavit of Timothy Roberto
6. Motion for Evidentiary Hearing
7. Order Denying Decision on the Record and Setting Evidentiary Hearing
8. Notice of Independent Medical Examination
9. Motion for Protective Order
10. Employee's Response to Employer's Motion for Protective Order
11. Notice of Filing ofDeposition
12. Order of Protection
13. Pre-Hearing Brief
14. Pre-Expedited Hearing Brief
15. Employer's filing of Amended Witness List
16. Employer's filing of Witness and Exhibit List for Expedited Hearing
17. Notice of Late-Filed Exhibit of Photograph
18. Notice of Late-Filed Exhibit of July 5, 2019 Work Status Note
19. Plaintiffs Counsel's affidavit and documents to support motion to exclude.




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                          CERTIFICATE OF SERVICE

     I certify that a copy of this Order was sent as indicated on December 20, 2019.

        Name             Certified    Fax       Email     Service sent to:
                          Mail
Tim Roberto,                                              troberto@brownandroberto.com
Employee's Attorney                              X        j lampien@}brownandroberto.com
Allen Callison,                                            allen.callison@mgclaw .com
Employer's Attorney                              X



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