       IN THE TENNESSEE COURT OF WORKERS’ COMPENSATION CLAIMS


MARK D. GREEN
                                                         DOCKET NO. 2014-05-00470
        Employee,                                        STATE FILE NO. 65639-2014
v.                                                       DATE OF INJURY: July 24, 2014
                                                         JUDGE BAKER
SUMPTER SOLUTIONS, LLC
BRENTWOOD SERVICES
ADMINISTRATORS, INC.

        Employer/Carrier,


                              ORDER ON EXPEDITED HEARING

        THIS CAUSE came before the Court upon the Request for Expedited Hearing filed on
January 23, 2015, by Mark D. Green pursuant to Tennessee Code Annotated section 50-6-239(d)(1).
 Although Mr. Green requested that the Court convene an evidentiary hearing, upon further
discussion Mr. Green and attorney Catheryne Grant, counsel for Sumpter Solutions, LLC (Sumpter)
and Brentwood Services (Brentwood) consented to having the Court issue an interlocutory order
based on a review of the file pursuant to Rule 0800-02-21-.14(1)(c) of the Tennessee Comprehensive
Rules and Regulations. Upon review of Mr. Green’s Request for Expedited Hearing and the
entirety of the court file, and in consideration of the applicable law, the Court finds that it needs no
additional information to decide Mr. Green’s request for medical benefits and enters the following
order denying same.

                                                Issues

       Whether Sumpter should be required to provide Mr. Green additional medical benefits for his
alleged work-related injury.

                                        Evidence Submitted

       The Court reviewed the entire case file in reaching its decision. Specifically, the Court
reviewed and relied upon the following:

     A. Medical records of Dr. Chad Smalley
     B. Medical report of Dr. William C. Nemeth dated October 6, 2014
     C. C-42 Choice of Physician Form
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   D.   Medical records of Dr. David Martin
   E.   Medical records of Dr. Guy Fain
   F.   Affidavit of Joseph Sumpter
   G.   Affidavit of Eric Rogers
   H.   Affidavit of Clay Binkley
   I.   Affidavit of Mark Green dated January 6, 2015
   J.   Correspondence from Dr. Smalley dated February 25, 2015
   K.   Affidavit of Mark Green dated March 10, 2015
   L.   Notice of Denial of Claim for Compensation
   M.   Medical Report of Dr. William C. Nemeth dated November 7, 2014
   N.   First Report of Injury
   O.   MRI Report
   P.   Affidavit of Alyssa Sumpter
   Q.   Correspondence from Dr. Smalley bearing a November 7, 2014 fax transmission date.

                                        History of Claim

        The Court derives the claim history provided below from the claim file:

       On January 29, 2013, Mr. Green suffered an on-the-job injury. Sumpter provided treatment
with Dr. David Martin at Sewanee Family Practice. (Exh. K). The note from Mr. Green’s first
appointment with Dr. Martin includes the following description of the accident:

               He is here for workmans [sic] comp he injured his R knee 1/29/2013
               when he fell while carrying a jackhammer. He landed directly on his
               knee cap on a small tool box containing drill bits. He didnt [sic]
               break the skin but it did bruise. He used ibuprofen and kept it
               elevated that weekend and it improved. He has been doing a lot
               flooring work past 30 days with knee pads and his knee has gotten
               progressively swollen and painful again.

Dr. Martin diagnosed joint pain, a knee contusion, and prepatellar bursitis. (Exh. D).

        On July 24, 2014, Mr. Green suffered another injury to the same knee while working. The
First Report of Injury states that the injury occurred when a rock got caught between the knee pad
and his knee while Mr. Green was crawling. (Exh. N).

        Mr. Green went to the emergency room at Southern Tennessee Medical Center on July 30,
2014, when his knee began to swell. At the emergency room, the providers aspirated and x-rayed
Mr. Green’s knee and injected it with cortisone. (Exh. E). The attending physician, Dr. Guy Fain,
diagnosed osteoarthritis and an abrasion. (Exh. E). He took Mr. Green off work pending evaluation
and release by a workers’ compensation physician. (Exh. E).


       Sumpter provided Mr. Green a panel of physicians and he selected Dr. Chad Smalley as the
authorized treating physician. (Exh. C). The medical records indicate that Mr. Green told Dr.

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Smalley that he injured his right knee while crawling under a house to perform some plumbing.
(Exh. C). He described the knee pain as “achy, burning and sharp” and rated the pain as an eight (8)
on a scale of one (1) to ten (10). (Exh. C). Mr. Green also described experiencing weakness and
radiation into his upper leg as well as “burning, catching, cracking, gait abnormality or limp,
grinding, locking, loss of motion popping and stiffness and instability.” (Exh. C). Mr. Green
additionally reported some discharge in the area around his knee. (Exh. C). Dr. Smalley issued
restrictions prohibiting Mr. Green from working on his knees and from twisting, bending, squatting
and kneeling. (Exh. C). He also ordered an MRI. (Exh. C).

       On August 14, 2014, Mr. Green underwent an MRI. (Exh. O). The MRI revealed no
ligament damage or meniscal tears. (Exh. O). The MRI did, however, reveal “Focal grade 2-4
medial condyle chondromalacia” and a “Large area of grade 4 medial chondromalacia patella.”
(Exh. O).

       Mr. Green returned to Dr. Smalley on August 27, 2014. (Exh. C). Dr. Smalley diagnosed
chondromalacia in the right patella and right knee pain. (Exh. C). He ordered an injection and
continued Mr. Green’s workplace restrictions. (Exh. C). Mr. Green received the injection but his
symptoms did not improve.

         At a visit on October 1, 2014, Dr. Smalley wrote the following in the “Plan” section of his
treatment notes: “We discussed that his symptoms have continued to be recalcitrant to conservative
treatment. He is a candidate for an arthroscopy with shaving chondroplasty and microfracture
technique. He understands that the arthroscopic procedure will not fix the arthritis or remove all
arthritis from the knee, and that likely the arthritic degeneration will continue over time with
continued symptoms and possibly even additional procedures necessary, even a total knee
arthroplasty in the future.” (Exh. C).

        On October 6, 2014, Sumpter obtained a peer review report from Dr. William C. Nemeth
concerning Mr. Green’s need for knee surgery. (Exh. B). In answering the question of whether a
causal relationship existed between Mr. Green’s July 24, 2014 injury and the request for “right knee
arthroscopy with shaving chondroplasty with microfacture technique,” Dr. Nemeth wrote:

               Absolutely not, the claimant has a history of right knee pain due to
               prepatellar bursitis. The changes in the medial facet of the patella in
               this claimant are due to chronic loading conditions from the
               biomechanics of the patellofemoral joint and have nothing to do with
               this alleged workplace injury itself. The proclivity toward
               degenerative joint disease plus the biomechanics of the joint have
               contributed to this lesion in the medial patellar facet. Abrasion
               chondroplasty or microfracture is not indicated in this claim as it
               would relate to any workplace injury itself. The alleged workplace
               injury likely caused exacerbation of preexisting disease which was
               already well document in this claimant. It did not cause any
               structural changes to the patellofemoral joint in this claim. That said,
               requests for knee arthroscopy with shaving chondroplasty and
               microfracture does not relate to this workplace injury itself.

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(Exh. B).

       On October 8, 2014, Sumpter faxed a copy of Dr. Nemeth’s report to Dr. Smalley along with
a questionnaire asking whether Dr. Smalley agreed with Dr. Nemeth’s opinion. (Exh. Q). Dr.
Smalley checked “Yes” on the questionnaire and faxed it back to Sumpter. (Exh. Q).

        On October 29, 2014, Mr. Green returned to Dr. Smalley for follow-up treatment. In the
treatment notes, Dr. Smalley again stated that “…an arthroscopy with shaving chondroplasty and
microfracture technique…” would benefit Mr. Green. (Exh. C). The treatment notes also contained
the following: “Although there are findings that would suggest an underlying chronic state of
chondromalacia we do believe there to be acute symptoms that are causally related to the reported
injury at work. We do feel an arthroscopic procedure could address these symptoms and hopefully
get MR. [sic] Green back to his baseline of function.” (Exh. C).

       Upon receiving this medical note, Sumpter forwarded it to Dr. Nemeth for review. On
November 7, 2014, Dr. Nemeth issued a second report. (Exh. M). In responding to the question of
whether Dr. Smalley’s October 29, 2014 office note changed his previous opinion, Dr. Nemeth
wrote:

               No, the claimant’s acute injury was a prepatellar bursitis of the right
               knee. That has been treated successfully and resolved. The
               additional problems with the knee are due to chronic degenerative
               changes in the patellofemoral joint and joint in general and have
               nothing to do with this mechanism of injury itself. That said, any
               arthroscopic chondroplasty or microfracture procedure done for this
               joint relates to the previous preexisting degenerative arthritis of the
               knee which does not relate to the acute prepatellar bursitis which was
               successfully treated in this claimaint.

(Exh. M).

        On November 26, 2014, Mr. Green visited Dr. Smalley again. The treatment notes from this
visit stated “Although there are findings that would suggest an underlying chronic state of
chondromalacia we do believe there to be acute symptoms that are causally related to the reported
injury at work. We do feel an arthroscopic procedure could address these symptoms and hopefully
get Mr. Green back to his baseline of function.” (Exh. C).

        On January 28, 2015, Sumpter sent Dr. Smalley a letter seeking clarification on the causal
relationship between Mr. Green’s need for surgery and the July 24, 2014 workplace accident. (Exh.
J). On February 25, 2015, Dr. Smalley provided the following response:




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(Exh. J). On March 2, 2015, Sumpter issued a notice denying Mr. Green’s claim on the ground of
compensability. (Exh. L).
                                 Employee’s Contentions

        Mr. Green argues that he suffered a compensable injury to this right knee on July 24, 2014.
Essentially, Mr. Green claims that the July 24, 2014 injury constituted a progression or
reaggravation of the previous right knee injury he suffered on January 29, 2013. In his affidavit, Mr.
Green stated that he continued to suffer pain since January 29, 2013, and missed time off from work
due to the pain and swelling in his knee. Mr. Green further states that he suffered no knee pain prior
to January 29, 2013. He also claims that much of the pain and swelling from the 2013 injury had
lessened, or come under control, prior to the July 24, 2014 incident. Mr. Green requests an order
requiring Sumpter to pay the cost of the surgery necessary to correct his knee condition.

                                     Employer’s Contentions

       Sumpter argues that the current need for treatment did not arise from his July 24, 2014
accident. Sumpter relies upon the opinion of the authorized treating physician, Dr. Smalley, in

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support of its position that the Court should not order it to pay for Mr. Green’s knee surgery.

                            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). Tennessee Code Annotated section 50-6-239(c)(6) provides that “[u]nless the statute
provides for a different standard of proof, at a hearing, the employee shall bear the burden of proving
each and every element of the claim by a preponderance of the evidence.” Tenn. Code Ann. section
50-6-239(c) (2014). A different standard of proof exists for the issuance of interlocutory orders at
expedited hearings than the standard of proof required at compensation hearings. McCord v.
Advantage Human Resourcing, No. 2014-06-0063 (Tenn. Work. Comp. App. Bd., March 27, 2015).
A workers’ compensation judge may enter an interlocutory order for medical or temporary benefits
upon a determination that the injured employee would likely prevail at a hearing on the merits.
Tenn. Code Ann. 50-6-239(d)(1) (2014); McCall v. Nat’l Health Care Corp., 100 S.W.3d 209, 214
(Tenn. 2003).

                                          Factual Findings

       The Court finds that Mr. Green suffered an injury on July 24, 2014, while crawling under a
house to install plumbing. The Court finds that Mr. Green was performing activities within the
course and scope of his employment for Sumpter when the incident occurred. The Court finds that
Mr. Green’s current symptoms and need for surgery are related to his underlying degenerative
chondromalacia.

                                    Application of Law to Facts

       At this time, the Court must deny Mr. Green’s request for surgical treatment because the
opinion of the authorized treating physician does not support a causal relationship between the July
24, 2014 injury and his current need for arthroscopic surgery. Accordingly, Mr. Green is unlikely to
succeed at a hearing on the merits and cannot recover temporary benefits at this time. See Tenn.
Code Ann.§ 50-6-239(d)(1) (2014).

       Tennessee Code Annotated Section 50-6-102(13) defines an injury as follows:

              “Injury” or “personal injury” mean an injury by accident … arising
              primarily out of and in the course and scope of employment, that causes
              …the need for medical treatment of the employee; provided, that:

              (A)      An injury is “accidental” only if the injury 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[.]

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Tenn. Code Ann. § 50-6-102(13)(A) (2014). In this case, Mr. Green provided an affidavit stating
that his “knee pain flared up after crawling under a house using knee pads on July 24, 2014.” (Exh.
I). The parties have not disputed that Mr. Green was performing work for Sumpter when crawling
under the house.

        The statutory definition of “injury” additionally provides: “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). In this case, Mr. Green
provided an affidavit stating that he injured his knee while crawling under a house. (Exh. I).

        However, the statute further provides: “An injury causes … the need for medical treatment
only if it has been shown to a reasonable degree of medical certainty that it contributed more than
fifty percent (50%) in causing … [the] need for medical treatment, considering all causes.” Tenn.
Code Ann. § 50-6-102(13)(C) (2014) (emphasis added). Longstanding Tennessee case law mirrors
this requirement. Except in “the most obvious, simple and routine cases,” a workers' compensation
claimant must establish by expert medical testimony that he or she is injured and that there exists a
causal relationship between the injury and the claimant's employment activity. Wheetley v. State,
No. M2013-01707-WC-R3-WC, 2014 Tenn. LEXIS 476, (Tenn. Workers’ Comp. Panel, June 25,
2014) (citing Excel Polymers, LLC v. Broyles, 302 S.W.3d 268, 274 (Tenn. 2009)); Cloyd v. Hartco
Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008).

        The authorized treating physician’s opinion on causation enjoys a presumption of correctness
that can be overcome through the presentation of contrary evidence that satisfies a preponderance
standard. See Tenn. Code Ann. § 50-6-102(13)(E) (2014). Any care prescribed by the physician
selected from the panel is presumed to be reasonable and necessary for treatment of the employee’s
work-related injury. See Russell v. Genesco, Inc., 651 S.W.2d 206, 211 (Tenn. 1983).

        Here, Mr. Green seeks a surgical procedure originally recommended by his authorized
treating physician. On November 26, 2014, Dr. Smalley opined that although findings suggested
underlying chronic chondromalacia, he believed that Mr. Green had symptoms related to the July 24,
2014 injury, which could benefit from the arthroscopic surgery. (Exh. C). Dr. Smalley’s opinion,
however, has since changed. On February 25, 2015, Dr. Smalley opined that the arthroscopic
surgery is indicated to address the underlying chondromalacia rather than the “symptoms related to
the acute exacerbation.” (Exh. J). He further stated that the underlying chondromalacia
contributed more than fifty percent (50%) to Mr. Green’s need for arthroscopic surgery. (Exh. J).
Accordingly, Mr. Green failed to show that the July 24, 2014 accident contributed more than fifty
percent (50%) in his current need for surgery. For that reason, the Court denies his request for
medical benefits.

        In his affidavits, Mr. Green also indicated a belief that his current need for medical treatment
may relate to his January 29, 2013 workplace injury because he continued to suffer pain
intermittently in the same area of the body since the 2013 accident occurred. This Court has original
and exclusive jurisdiction over worker’s compensation claims where the injury occurred on or after
July 1, 2014. See Tenn. Code Ann. § 50-6-237 (2014). So far as Mr. Green requested medical

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benefits under Sumpter’s obligation to provide future medical care for the January 29, 2013 injury, if
any, this Court lacks subject matter jurisdiction.

       Lastly, the Court declines to declare Mr. Green’s claim non-compensable at this time.
Although he has not presented sufficient proof to carry his burden of proof in this Expedited
Hearing, Mr. Green could still prevail at a hearing on the merits if he provides an appropriate
medical opinion that rebuts the opinion provided by Dr. Smalley.

 IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Green’s request for medical benefits is denied.

   2. This matter is set for Initial Hearing via teleconference on May 12, 2015, at 10:30 a.m.
      (CDT). The parties must participate in the Initial Hearing by calling (615) 741-2113.
      Failure to participate in the hearing may result in decisions being made in the case
      without the input of the non-participating party.


ENTERED ON THIS THE 21ST DAY OF APRIL, 2015.




                                               _____________________________________
                                               Joshua Davis Baker
                                               Workers' Compensation Judge
                                               Court of Workers’ Compensation Claims

Initial Hearing:

       An Initial Hearing has been set with Judge Joshua Davis, Court of Workers Compensation
Claims. You must call (615) 741-2113 or toll free at (855) 874-0474 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 Central Time (CT).




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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 (7) business days of the date the
      Expedited Hearing Order was entered by the Workers’ Compensation Judge.

   3. Serve a copy of the Request for Appeal upon the opposing party.

   4. 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 (10)
      calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the
      parties may file a statement of the evidence within ten (10) calendar days of the filing of the
      Expedited Hearing Notice of Appeal. The statement of the evidence must be approved by
      the Judge before the record is submitted to the Clerk of the Appeals Board.

   5. 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 (3)
      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 (3)
      business days of the filing of the appellant’s position statement.




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                                   CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the
 following recipients by the following methods of service on this the 21st day of April 2015.

Name                   Certified   First    Via    Fax      Via     Email Address
                       Mail        Class    Fax    Number   Email
                                   Mail
Mark D. Green                                               x       Mdgreen41@gmail.com
Catheryne Grant                                             x       catherynelgrant@feeneymurray.com


                                                       _____________________________________
                                                       Penny Patterson-Shrum, Clerk
                                                       Tennessee Court of
                                                       Workers’ Compensation Claims




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