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

Rickie A. Brown,                            )   Docket No. 2016-05-0775
             Employee,                      )
v.                                          )   State File No. 45595-2015
Goodman Global,                             )
             Employer,                      )   Judge Dale Tipps
and                                         )
Ace American Ins. Co.,                      )
           Insurance Company.               )



             EXPEDITED HEARING ORDER DENYING BENEFITS


       This matter came before the undersigned workers’ compensation judge on April
12, 2017, on the Request for Expedited Hearing filed by Rickie Brown. The present
focus of this case is whether Mr. Brown is entitled to medical and temporary disability
benefits for his alleged skin condition. The central legal issue is whether Mr. Brown is
likely to establish at a hearing on the merits that Goodman Global must provide
additional medical treatment and temporary disability benefits. For the reasons set forth
below, the Court holds Mr. Brown is not entitled to the requested benefits at this time.

                                   History of Claim

       Mr. Brown testified that, while working with fiberglass insulation at Goodman in
June 2015, he noticed a rash on his arms, hands, and legs. He reported the condition to
his supervisors. Goodman accepted the claim as compensable and provided a panel of
medical providers from which Mr. Brown selected Skin Solutions in Pulaski, Tennessee.

      The earliest medical record submitted by the parties is from Skin Solutions, dated
January 5, 2016. Mr. Brown saw PA Darryl Smith for complaints of rash/fiberglass

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reaction that began at work six months earlier. PA Smith assessed rash and pruritus and
prescribed Zyrtex, Allegra, and Claritin. He also wrote that Mr. Brown could return to
work without physical restrictions but recommended that he not work with fiberglass
insulation until his condition resolved. Subsequent records show Mr. Brown returned for
three visits in June to undergo patch testing to determine whether the rash resulted from
an allergic reaction.

       On Mr. Brown’s last visit to Skin Solutions on July 7, 2016, PA Kelsey Mauro
interpreted the patch test results and provided Mr. Brown with handouts regarding the
allergens that caused a reaction. PA Mauro also either recommended or prescribed a
cleanser and a moisturizer. She released Mr. Brown to return to regular work but said he
should stay away from insulation and associated allergens. PA Mauro also filled out a
Final Medical Report indicating that Mr. Brown reached maximum medical improvement
(MMI) on June 17, 2016, and retained no permanent impairment.

        Regarding the issues before the Court, Mr. Brown acknowledged Goodman
initially provided and paid for his medical treatment. However, he testified that at some
point the pharmacy refused to fill his prescriptions.

       Similarly, Mr. Brown testified that Goodman initially paid temporary disability
benefits but later terminated those benefits. Although he was unsure exactly when his
benefits stopped, he admitted it could have been after PA Mauro found him to be at MMI.
Goodman never allowed him to return to work, and he remained unemployed until he
found a new job in November 2016. He seeks temporary disability benefits for his period
of unemployment and additional medical treatment.

                       Findings of Fact and Conclusions of Law

        The following legal principles govern this case. Tennessee Code Annotated
section 50-6-239(b)(1) (2016) states that “only issues that have been certified by a
workers’ compensation mediator within a dispute certification notice (DCN) may be
presented to the workers’ compensation judge for adjudication,” unless permission has
been granted by the judge for parties to present additional issues. Because the DCN did
not list compensability as a disputed issue and the parties did not request permission to
present additional issues, the Court deems compensability of Mr. Brown’s claim to be
undisputed. Therefore, he is not required to make the usual showing that his alleged
injury arose primarily out of and in the course and scope of his employment, as required
by Tenn. Code Ann. § 50-6-102(14) (2016).

        However, because the DCN identified medical treatment as one of the disputed
issues, Mr. Brown must show “to a reasonable degree of medical certainty that [his work]
contributed more than fifty percent (50%) in causing the . . . need for medical treatment,
considering all causes.” The phrase “to a reasonable degree of medical certainty” means

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that, in the opinion of the treating physician, it is more likely than not considering all
causes as opposed to speculation or possibility. See Tenn. Code Ann. § 50-6-102(14)(C)
and (D).

        Because this case is in a posture of an Expedited Hearing, Mr. Brown need not
prove every element of his claim by a preponderance of the evidence in order to obtain
relief. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS
6, at *7-8, 9 (Mar. 27, 2015). Instead, he must come forward with sufficient evidence
from which this Court might determine he is likely to prevail at a hearing on the merits.
Id.; Tenn. Code Ann. § 50-6-239(d)(1).

       None of the records submitted by Mr. Brown contains any medical opinion as to
whether the need for any future medical treatment is causally related to the work injury.
Absent any such opinion, Mr. Brown has not demonstrated he is likely to prevail at a
hearing on the merits on the issue of the cause of his current medical needs.

       Further, Mr. Brown presented no evidence or testimony indicating that he ever
requested a return to his medical providers or that Goodman denied any such request.
The only proof of any unpaid or denied medical treatment was Mr. Brown’s testimony
that the pharmacy refused to fill his prescriptions. He failed, however, to provide any
information about what prescriptions were unfilled, why they were prescribed, who
prescribed them, or why they were denied. The lack of this information prevents the
Court from concluding that Goodman denied medical benefits. Because Goodman does
not dispute compensability, Mr. Brown may be entitled to continuing medical treatment,
but he has not presented enough evidence to justify an order for such treatment at this
time.

       Mr. Brown also seeks payment of temporary disability benefits. An injured
worker is eligible for temporary total disability (TTD) benefits if: (1) the worker became
disabled from working due to a compensable injury; (2) there is a causal connection
between the injury and the inability to work; and (3) the worker established 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). Mr. Brown presented no evidence that any medical
provider ever took him completely off work. Therefore, he appears unlikely to prevail on
a claim for TTD benefits at a hearing on the merits.

       The only other category of temporary benefits the Court may consider is
temporary partial disability (TPD) benefits. TPD is a category of vocational disability
available when the temporary disability is not total. Id.; see also Tenn. Code Ann. § 50-
6-207(1)-(2) (2016). Specifically, “[t]emporary partial disability refers to the time, if
any, during which the injured employee is able to resume some gainful employment but
has not reached maximum recovery.” Id., (citing Williams v. Saturn Corp., No. M2004-
01215-WC-R3-CV, 2005 Tenn. LEXIS 1032, at *6 (Tenn. Workers’ Comp. Panel Nov.

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15, 2005)).

       The evidence shows that Mr. Brown’s providers recommended that he not work
with fiberglass. To the extent this constituted a temporary disability, Mr. Brown may
have been entitled to some period of TPD benefits. However, he failed to present any
evidence proving the duration of that disability. The Court has no information as to when
Goodman began paying temporary disability benefits, how much they paid, or when they
stopped. Further, as noted above, Mr. Brown submitted no medical opinion as to the
cause of his rash. Absent medical proof of a causal connection between the injury and
the inability to work, as well as evidence establishing the duration of the period of
disability, the Court cannot find Mr. Brown appears likely to prevail on a claim for TPD
benefits at a hearing on the merits.

       Based on the foregoing, as a matter of law, Mr. Brown has not come forward with
sufficient evidence from which the Court can conclude he is likely to prevail at a hearing
on the merits. His request for medical and temporary disability benefits is denied at this
time.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Brown’s claim against Goodman and its workers’ compensation carrier for the
      requested medical and temporary disability benefits is denied.

   2. This matter is set for a Scheduling Hearing on June 28, 2017, at 9:00 a.m. You
      must call 615-741-2112 or toll free at 855-874-0473 to participate. Failure to call
      may result in a determination of the issues without your further participation. All
      conferences are set using Central Time (CT).

      ENTERED this the 18th day of April, 2017.


                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims




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                                     APPENDIX

Exhibits:
   1. Affidavit of Rickie Brown
   2. PA Darryl Smith’s January 5, 2016 Progress Note
   3. Records from Skin Solutions
   4. First Report of Injury
   5. Wage Statement
   6. Digital photograph disc (Identification Only)
   7. CVS pharmacy prescription record (Identification Only)
   8. January 5, 2016 return-to-work note

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




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                           CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order
 Denying Benefits was sent to the following recipients by the following methods of
 service on this the 18th day of April, 2017.

Name                        Certified   Via    Via      Email Address
                            Mail        Fax    Email


Rickie Brown                   X                    X   316 McLean Street
                                                        Pulaski, TN 38478
                                                        lbrown@impactcenters.net
Peter Rosen, Attorney                               X   prosen@levineorr.com




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




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