                                                                                      FILED
                                                                                 September 7.• 2016

                                                                                    TNCOURTOF
                                                                              W ORKER.S' O Ol lPENSATIO N
                                                                                      CLAIMS

                                                                                     Tim.e· lO:Or7 AM


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

JAMES MCCAFFERY,                             )   Docket No.: 2015-08-0218
        Employee,                            )
v.                                           )   State File No.: 44676-2015
                                             )
CARDINAL LOGISTICS,                          )   Judge Amber E. Luttrell
         Employer,                           )
And                                          )
                                             )
ACE AMERICAN INSURANCE CO.,                  )
        Insurance Carrier.                   )
                                             )


     EXPEDITED HEARING ORDER DENYING TEMPORARY DISABILITY
                            BENEFITS
                  (FILE REVIEW DETERMINATION)


       This matter came before the Court upon the second Request for Expedited Hearing
filed by James McCaffery, pursuant to Tennessee Code Annotated section 50-6-239
(2015). Mr. McCaffery requested the Court decide his interlocutory claim for additional
temporary total disability benefits based on a review of the file without an evidentiary
hearing. Cardinal Logistics did not request an in-person evidentiary hearing. The Court
issued a Docketing Notice on August 1, 2016, allowing the parties five business days to
raise any objections to admissibility of any document filed in this case. The parties filed
no objections.

       This Court finds it needs no additional information to determine whether Mr.
McCaffery is likely to prevail at a hearing on the merits regarding his entitlement to
additional temporary disability benefits (TTD). Accordingly, under Tennessee Code
Annotated section 50-6-239(d)(2) (2015), Tennessee Compilation Rules and Regulations
0800-02-21-.14(1)(c) (2015), and Rule 7.02 of the Practices and Procedures of the Court
of Workers' Compensation Claims (2015), the Court decides this matter upon a review of
    the written materials. 1

         The sole legal issue before the Court at this time is whether Mr. McCaffery's
 attainment of maximum medical improvement (MMI) for his physical injuries foreclosed
 his right to temporary disability benefits when he is still treating for a mental injury. For
 the reasons set forth below, the Court holds under Tennessee Code Annotated section 50-
 6-207(l)(E), Mr. McCaffery is conclusively presumed at MMI; thus, he has not
 established he is likely to prevail at a hearing on the merits on his request for additional
 TTD.

                                               History of Claim 2

     This claim involves an injury Mr. McCaffery sustained in a motor vehicle accident
on May 19, 2015, while working as an over-the-road truck driver for Cardinal.

       On the date of injury, Mr. McCaffery drove a truck on U.S. Highway 60 traveling
from Fort Scott, Kansas to Memphis, Tennessee. He drove into a curve on the highway
when he sneezed, causing him to run off the road. He attempted to direct the truck back
onto the highway, but he ''oversteered," causing the truck to roll over. Mr. McCaffery
sustained multiple physical injuries in the accident.

       Cardinal denied Mr. McCaffery's claim on grounds his injury did not arise
primarily out of and in the course and scope of his employment. Specifically, Cardinal
asserted Mr. McCaffery's injury resulted from an idiopathic condition or "Act of God."

       Following the denial, Mr. McCaffery filed a Petition for Benefit Determination
(PBD) seeking medical and temporary disability benefits. The parties did not resolve the
disputed issues through mediation; therefore, the Mediating Specialist filed a Dispute
Certification Notice. The Court conducted an Expedited Hearing and subsequently
entered an Order Granting Medical and Temporary Disability Benefits. The Court found
Mr. McCaffery presented sufficient evidence from which it concluded he is likely to
prevail at a hearing on the merits on the issue of compensability and entitlement to
temporary disability. 3 Cardinal appealed the Expedited Hearing Order, and the Workers'
Compensation Appeals Board affirmed the Court's decision.

          In compliance with the Expedited Hearing Order, Cardinal provided Mr.
1
  The Court labeled the documentation within the file as "exhibits" for ease of reference only and did not rule on the
admissibility of the information into evidence. The documentation is listed as an appendix to this Order.
2
  Mr. McCaffery previously filed a Request for Expedited Hearing for medical and temporary disability benefits.
The Court conducted an evidentiary hearing and entered an Expedited Hearing Order Granting Medical and
Temporary Disability Benefits. The full history of Mr. McCaffery's claim set forth in the original Expedited Hearing
Order is incorporated herein by reference.
3
  The Court notes Mr. McCaffery did not allege a mental injury at his original expedited hearing. Thus, the Court
ordered medical and temporary disability benefits for his physical injuries only.

                                                          2
McCaffery a panel of physicians from which he selected Dr. Robert Lonergan for
treatment of his orthopedic injuries. The parties asserted that while treating for his
physical injuries, Dr. Lonergan referred Mr. McCaffery for psychiatric treatment due to
the work-related injury. Cardinal then provided a panel of psychiatrists from which Mr.
McCaffery selected Dr. Melvin Goldin. Subsequently, as part of Dr. Goldin's treatment
regimen, he referred Mr. McCaffery for psychological counseling. Mr. McCaffery
selected Neil Aranov, a clinical psychologist, from a panel offered by Cardinal. 4

         It is undisputed that Dr. Lonergan placed Mr. McCaffery at maximum medical
improvement (MMI) on June 28, 2016, for his orthopedic injuries; however, Dr. Goldin
has not returned Mr. McCaffery to work or placed him at MMI from a psychiatric
standpoint. 5 (Ex. 3.) Dr. Goldin's handwritten note dated June 29, 2016, states, "Pt.
cannot return to work [sic] from issue noted above, 6 probably due to med
trial/adjustment." (Ex. 4.)

      Based upon the position statements of the parties, it appears Cardinal paid Mr.
McCaffery TTD benefits while he was off work per Dr. Lonergan. However, it
terminated TTD upon Dr. Lonergan's assessment of MMI for Mr. McCaffery's
orthopedic injuries on June 28.

       Following the termination of his TTD benefits, Mr. McCaffery filed the instant
Request for Expedited Hearing seeking additional benefits. Mr. McCaffery contends he
has not reached maximum medical improvement according to his authorized treating
psychiatrist; thus, he is entitled to ongoing TTD. He submits Tennessee Code Annotated
section 50-6-207(1)(D)(i) (2015) is the controlling statute on this issue.

        Relying on Tennessee Code Annotated section 50-6-207(1)(E), Cardinal
discontinued Mr. McCaffery's temporary disability payments on grounds Mr.
McCaffery's active treatment ended for his physical injuries and the only care provided is
for the alleged mental injury that arose out of the physical injury.

                             Findings of Fact and Conclusions of Law

       The Appeals Board noted the longstanding criteria for temporary disability
benefits as follows: "An injured worker is eligible for temporary disability benefits if: (1)
the worker became disabled from working due to a compensable injury; (2) there is a

4
  The parties did not submit any medical records regarding Mr. McCaffery's orthopedic or psychological treatment.
The Court notes the only records filed with this Request for Expedited Hearing were work status notes from the
providers.
5
  The Court notes the parties did not submit any records from Mr. Aranov; however, Cardinal asserted in its
response to Employee's position statement that Dr. Aranov also has not released Mr. McCaffery to return to work or
determined he is at MMI.
6
  The Court notes it cannot determine what "issue noted above" Dr. Goldin referred to in his record, as his
handwriting in the note is largely illegible.

                                                        3
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,
No. 2015-06-0332, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Tenn. Workers'
Comp. App. Bd. Dec. 11, 2015), citing Simpson v. Satterfield, 564 S.W.2d 953 (Tenn.
1978).

        Here, the parties' dispute regarding Mr. McCaffery's entitlement to ongoing TTD
benefits concerns an issue of statutory construction. Several basic principles govern
construction of Tennessee statutes. The central focus when construing any statute,
however, is to "ascertain and give effect to the intention or purpose of the legislature as
expressed in the statute." In reAdoption of A.MH, 215 S.W.3d 793, 808 (Tenn. 2007)
(citing State ex rel. Rector v. Wilkes, 436 S.W.2d 425, 427 (Tenn. 1968)). To that end,
unless the language is ambiguous, the Court must derive legislative intent "from the
natural and ordinary meaning of the statutory language within the context of the entire
statute without any forced or subtle construction that would extend or limit the statute's
meaning." !d., citing State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000).

         Mr. McCaffery and Cardinal submitted the following statutory language is at
ISSUe:


         (D) An employee claiming a mental injury, as defined by § 50-6-102,
         occurring on or after July 1, 2009, shall be conclusively presumed to be at
         maximum medical improvement upon the earliest occurrence of the
         following:

            (i) At the time the treating psychiatrist concludes the employee has
            reached maximum medical improvement; or
            (ii) [Deleted by 2013 amendment, effective July 1, 2014.]
            (iii) One hundred four ( 104) weeks after the date of injury in the case of
            mental injuries where there is no underlying physical injury;

         (E) An employee claiming an injury as defined in § 50-6-102, when the
         date of injury is on or after July 1, 2014, shall be conclusively presumed to
         be at maximum medical improvement when the treating physician ends all
         active medical treatment and the only care provided is for the treatment of
         pain or for a mental injury that arose primarily out of a compensable
         physical injury. The employer shall be given credit against an award of
         permanent disability for any amount of temporary total disability benefits
         paid to the employee after the date that the employee attains maximum
         medical improvement as determined by a workers' compensation judge.

Tenn. Code Ann. § 50-6-207(l)(D)-(E) (2015).


                                               4
       Mr. McCaffery argued section 50-6-207(l)(D)(i) controls this issue. Because Mr.
McCaffery continues to see Dr. Goldin and/or Dr. Aranov for his alleged mental injury
arising from his underlying physical injury, he argued under 50-6-207(l)(D)(i) he is not
at MMI. Thus, Mr. McCaffery maintained he is entitled to ongoing TTD benefits.

       Alternatively, Mr. McCaffery contended that applying section 50-6-207(l)(E)
should lead to the same conclusion based on his argument that Dr. Goldin, as a treating
physician for the mental injury, has not ended all active medical treatment. (Emphasis
added.) Thus, Mr. McCaffery cannot be conclusively presumed to be at MMI.

       Cardinal countered that a plain reading of section 50-6-207(1)(E) provides that
"MMI is conclusively presumed for purposes of discontinuing temporary indemnity
benefits once the injured worker is placed at MMI for the underlying physical injuries
even ifthe injured worker is still receiving treatment for a mental injury that [allegedly]
arose primarily out of the work injury."

       Cardinal further relied on the Appeals Board opinion Tolbert v. MPW Industries
Services, Inc., No. 2015-01-0199, 2016 TN Wrk. Comp. App. Bd. LEXIS 1, at *6, 7
(Tenn. Workers' Comp. App. Bd. Mar. 24, 2016), as well as the trial level opinion from
McNeill v. Trustpoint Hospital, LLC, et al., No. 2015-05-0308, 2015 TN Wrk. Comp.
LEXIS 68 (Tenn. Workers' Comp. Cl. Oct. 1, 2015), in support of its argument. In
Tolbert, the employee's treating physician for his physical injuries released him at MMI.
However, the employee continued pain management treatment for pain control. Under
the facts of the case, the Appeals Board held the conclusive presumption of MMI in
section 50-6-206(l)(E) applied. Tolbert, at *12-13. Likewise, in McNeill, the trial court
found the mental injury involved an underlying physical injury. The Court held the
employee conclusively reached MMI when her active treatment for the physical injuries
ended and her treating physician placed her at MMI. Thus, the trial Court held section 50-
6-207(l)(E) applied and the employee was unlikely to prevail on her request for TTD
benefits.

        Here, in analyzing the statutes in dispute, the Court notes the 2013 Reform Act
 completely deleted section 50-6-207(l)(D)(ii), which previously addressed MMI for a
 mental injury arising out of a physical injury. It further deleted and redrafted the
 language of section 50-6-207(l)(E), which appears to replace subsection (D)(ii) to
 provide that an employee "shall be conclusively presumed to be at maximum medical
 improvement when the treating physician ends all active medical treatment and the
 only care provided is for the treatment of pain or for a mental injury that arose
 primarily out of a compensable physical injury." (Emphasis added.) This Court has a
 duty to construe a statute so that no part will be rendered inoperative, superfluous,
 void, or insignificant. McGee v. Best, 106 S.W.3d 48, 64 (Tenn. Ct. App. 2002).



                                            5
        Based on a plain reading of section 50-6-207(1 )(E) and the Appeals Board
 decision in Tolbert, the Court finds it applies to the facts of this case. It is undisputed
 that Dr. Lonergan released Mr. McCaffery from active treatment at MMI for his
 physical injuries on June 28. His only remaining care is with Dr. Goldin and/or Aranov
 for treatment of his mental injury arising out of his physical injuries. Thus, pursuant to
 subsection (1 )(E), cited above, he is conclusively presumed to be at MMI. While the
 Court is sympathetic to the issue of fairness raised by Mr. McCaffery, it appears these
 circumstances were contemplated by the Legislature in the revisions to subsections
 (l)(D) and (l)(E).

         Accordingly, the Court holds Mr. McCaffery has not established that he is likely
 to prevail at a hearing on the merits on his request for additional TTD benefits after
 June 28. The Court further holds that under subsection (l)(E), Cardinal shall be given
 credit against an award of permanent disability for any amount of temporary total
 disability payments paid to Mr. McCaffery after June 28.

  IT IS, THEREFORE, ORDERED as follows:

   1. Mr. McCaffery's request for additional temporary disability benefits is denied.

   2. Cardinal shall be given credit against an award of permanent disability for any
      amount of temporary total disability payments paid to Mr. McCaffery after June
      28, 2016.

      ENTERED this the 7th day of Se



                                   Ju ge Amber E. Luttrell
                                   Court of Workers' Compensation Claims

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.


                                             6
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 a.mount 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
   five 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
   any, with the Court Clerk within five business days ofthe 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.




                                         7
                                               APPENDIX

    The Court considered the following:

           1. Request for Expedited Hearing filed July 18, 20 16;
           2. Affidavit of James E. Blount, IV;
           3. Dr. Lonergan's work-status form dated June 28, 2016;
           4. Medical record of Dr. Melvin Goldin dated June 29, 2016;
           5. E-mails dated July 6, 2016,-July 13, 2016, between Jimmy Blount and Prairie
              Arnold; and,
           6. Employer's Response to Employee's Petition for Benefit Determination with
              Exhibits. 7



                                   CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Temporary Disability Benefits was sent to the following recipients by the
following methods of service on this the 7th day of September, 2016.

    Name                        Certified       Via         Via       Service sent to:
                                 Mail           Fax        Email
    Jimmy Blount, Esq.                                      X        j immy@blountfirm.com
    Employee's Attorney
    Prairie Arnold, Esq.                                     X        parnold@arnold-lawyers.com
    Employer's Attorney




                                                             , Clerk of Court
                                                  Court of orkers' Compensation Claims
                                                  WC.CourtClerk@tn.gov




7
  The Court notes the response filed by Employer was not a response to a Petition for Benefit Determination as
stated in its caption. Rather, it is a response to Employee's Request for Expedited Hearing.

                                                      8
