                   TENNESSEE DIVISION OF WORKERS’ COMPENSATION
                      WORKERS’ COMPENSATION APPEALS BOARD


Employee: Willis L. Bradshaw                           )       Docket No. 2014-06-0056
                                                       )
Employer: Jewell Mechanical, LLC                       )       State File No. 79765-2014



                                       CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 4th day of June, 2015.
 Name                      Certified   First Class   Via   Fax       Via     Email Address
                           Mail        Mail          Fax   Number    Email

 Marshall McClarnon, III                                               X     marshall@poncelaw.com
 D. Brett Burrow                                                       X     bburrow@bkblaw.com
 Pamela B. Johnson,                                                    X     Via Electronic Mail
 Judge
 Kenneth M. Switzer,                                                   X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                   X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: Jeanette.Baird@tn.gov
                                                                                    FILED
                                                                                    June 4, 2015

                                                                                   TENNESSEE
                                                                              WORKERS' COJVIPE~SATION
                                                                                 APPEALS BOARD

                                                                                   Time: 1:00PM



           TENNESSEE DIVISION OF WORKERS' COMPENSATION
              WORKERS' COMPENSATION APPEALS BOARD


Employee: Willis L. Bradshaw              )       Docket No. 2014-06-0056
                                          )
Employer: Jewell Mechanical, LLC          )       State File No. 79765-2014
                                          )
                                          )
Appeal from the Court of Workers'         )
Compensation Claims                       )
Pamela B. Johnson, Judge                  )




                    Affirmed and Remanded -Filed June 4, 2015


  OPINION AFFIRMING AND REMANDING INTERLOCUTORY ORDER OF
           COURT OF WORKERS' COMPENSATION CLAIMS

This interlocutory appeal concerns whether the employee suffered a compensable new
injury and/or a compensable aggravation of a preexisting condition in his right knee. The
trial court ruled for the employer, finding that although the employee stepped from a
scissor lift at work and experienced pain and swelling in his right knee, there was
insufficient medical evidence that the incident caused either a new injury arising
primarily out of and in the course and scope of employment or an aggravation of the
employee's preexisting condition arising primarily out of and in the course and scope of
employment. The employee has appealed. After a careful review, we find no error. We
affirm the trial court's decision and remand the case for any further necessary
proceedings.

Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, and Judge Timothy W. Conner, joined.

Marshall McClarnon, III, Goodlettsville, Tennessee, for the employee-appellant, Willis
L. Bradshaw

                                              1
D. Brett Burrow, Nashville, Tennessee, for the employer-appellee, Jewell Mechanical,
LLC

                         Factual and Procedural Background

        Willis Bradshaw ("Employee") installs heating and air conditioning systems for
Jewell Mechanical Services, LLC ("Employer"). On January 10, 2014, he stepped from a
scissor lift while in the course and scope of his employment, injuring his right knee. The
incident was timely reported and workers' compensation benefits were voluntarily
provided. Dr. Blake Garside was Employee's authorized treating physician. He
performed a right knee arthroscopy with partial medial meniscectomy, debridement of
lateral meniscus and ACL reconstruction. Dr. Garside placed Employee at maximum
medical improvement on May 13, 2014, and he assigned a 12% permanent medical
impairment to Employee's right leg. Employee returned to work without restrictions.
The parties reached an agreement resolving Employee's claim for benefits that was
approved by the Davidson County Chancery Court on June 25, 2014. In addition to
providing indemnity benefits and reconsideration rights, the Agreed Order of
Compromise and Settlement provided "statutory future medical treatment" for
Employee's right knee injury.

        On August 26, 2014, Employee returned to Dr. Garside "with complaints of right
knee pain and swelling for 1 week." The report from that visit states that Dr. Garside had
not seen Employee since he was placed at maximum medical improvement on May 13,
2014. The report states that Employee "denies any recent injury or trauma," and it notes
that Employee's "pain occurred after he got off a scissor lift." Dr. Garside's examination
revealed a large effusion and a range of motion "limited by the swelling in [Employee's]
knee . . . ." Radiographs were interpreted to reveal "no evidence of acute fractures or
dislocations." Dr. Garside aspirated "60 cc of straw-colored fluid," and he injected the
knee with Depo-Medrol, Lidocaine and Marcaine. He released Employee to "continue
regular duties and activities," noting that he would "see him in the future as needed." A
WorkLink Physician's Report completed by Dr. Garside at the August 26, 2014 visit
identifies the date of injury as "0 1110/2014."

        Employee returned to Dr. Garside on September 16, 2014, "with complaints of
persistent medial knee pain" that were noted as having "been present since Friday." The
report notes that Employee had increasing pain "and he feels as if he has had a recurrence
in his swelling." The report notes that Employee "is 7-112 months status post right ACL
reconstruction and partial meniscectomy." Employee reportedly "did well until three
weeks ago when he developed some increasing pain and discomfort after stepping off a
scissor lift." Dr. Garside's "PLAN" states that Employee "is having marked mechanical
symptoms and recurrent swelling in his right knee." The "PLAN" states that Employee
"is concerned about possibility of recurrent meniscal tear versus osteochondral lesion

                                            2
involving his medial femoral condyle." Dr. Garside recommended an MRI "to better
evaluate his meniscal and ligamentous structures at the present time and to evaluate his
ACL reconstruction." Dr. Garside completed a WorkLink Physician's Report at the
September 16, 20 14 visit confirming the return to regular duty work and the referral for
an MRI. The September 16, 2014 WorkLink Physician's Report also identifies the date
of injury as "01/10/2014."

       The MRI study was completed on September 22, 2014, and Employee returned to
Dr. Garside the following day. The report of the MRI study includes a history of
"surgery in early February 2014," and "[s]udden onset of swelling at end of July 2014,"
noting "[ f]luid drained at that time." The findings in the report included the following:

       Ligaments: The ACL has been reconstructed in the interval since the
       01/14/2014 exam. The graft is intact. A ganglion cyst has formed within
       the distal portion of the graft located within the tibial tunnel. The tunnel
       has been expanded by the cyst. Intact PCL. Intact collateral ligaments.

      Menisci and Femoral-Tibial Hyaline Cartilage: The medial meniscus
      posterior hom and body are diminished in size and truncated from partial
      meniscectomy performed since the prior exam. No re-tear. Full-thickness
      hyaline cartilage loss has become more extensive in the weightbearing
      portions of the medial compartment. Intact lateral meniscus and lateral
      compartment articular cartilage.

      Patellofemoral Joint and Extensor Mechanism:


      Osseous/Bone Marrow: Stress reaction edema has developed beneath the
      medial margin of medial tibial plateau and within the inferomedial portion
      of the medial femoral condyle.

      General: Moderate effusion. No loose body or abnormal mass.

        Dr. Garside's September 23, 2014 report notes the findings in the MRI report. His
examination on that date notes that Employee "remains tender to palpation over the
partial medial tibia." The doctor's impression was "1. Right knee chondromalacia [and]
2. Stress injury right medial tibial plateau." The "PLAN" states that Employee "has
frequent signs of stress reaction and worsening chondromalacia." Dr. Garside imposed
restrictions "at the present time [limited] to no climbing, or squatting." Employee was
instructed to return in one month for "re-evaluation for weightbearing and radiographs of
the right knee." The WorkLink Physician's Report completed on September 23, 2014
confirms the restrictions and a return appointment scheduled for October 21, 2014. It
also identifies the date of injury as "01/10/2014."

                                            3
      Employer filed a Notice of Controversy (Form C-27) with the Division dated
October 16, 2014, which identifies the "[m]atters in dispute" as follows: "Injury by
accident vs. continuation of covered prior claim of 01/10/2014 for same knee which
indemnity was settled and medicals left open for continued treatment."

       Employee returned to Dr. Garside on October 21, 2014. The report states that
Employee "returns today in followup of right tibial stress fracture," and it notes that "[h]e
is much improved since he was last seen." Employee reported a decrease in pain and
discomfort, and the report states "[h]e is actually pain free at the present time." The
report references the recent MRI study, "which revealed stress reaction in the medial
compartment as well as progressive chondromalacia." Radiographs were obtained, but
"[t]here are no acute fractures noted." Employee was allowed to resume activities "to
tolerance," and he was "released to return to regular duties and activities." As with the
prior appointments, a WorkLink Physician's Report identifies the date of injury as
"01110/2014." No reports of office visits with Dr. Garside and no WorkLink Physician's
Reports for dates subsequent to October 21, 2014 were admitted into evidence at the
expedited hearing.

       Employee filed a Petition for Benefit Determination on November 6, 2014,
seeking temporary disability benefits. Mediation was not successful in resolving the
parties' disputes, and on March 11, 2015, Employee filed a Request for Expedited
Hearing, asking the trial court to find that a "new injury" occurred on August 11, 2014,
and to award Employee temporary disability benefits for the period from September 23,
2014, through October 21, 2014. Counsel for the parties participated in the expedited
hearing by telephone on April 14, 2015.

       Exhibits introduced into evidence at the expedited hearing included two affidavits,
one from Employee and the second from Employer's General Manager. No one testified
at the hearing. Employee's affidavit states that on August 11, 2014, he "stepped off a
scissor lift and had the immediate onset of pain in my right knee." The affidavit states, "I
reported this new incident to my employer. At the time, I thought that I may have
aggravated my January 10, 2014 injury, and I returned to Dr. Blake Garside for
evaluation of my knee." The affidavit includes statements concerning what Dr. Garside
told Employee about his January 10, 2014 injury being aggravated and about Employee
having "a new stress fracture to the tibial plateau." The affidavit says that "Dr. Garside
indicated to me that this was a new injury and not related to my prior injury and surgery,"
and that "[o]nce Dr. Garside informed me that this was a new injury, and not an
aggravation of my previous injury, I notified my employer that this was a new workers'
compensation injury."

      The affidavit of Employer's General Manager, Donna Biter, states that she worked
for Employer in the summer of2014 and up through the November 24, 2014 date that her

                                             4
affidavit was signed. It states that she "communicated with [Employee] pertaining to his
leg and how it impacted him on his job," and that while she did not know the date that
Employee settled his claim arising out of the January 14, 2014 work injury, "during the
summer of 2014 and up until the time of this new asserted injury on August 11, 2014,
[Employee] regularly had problems with the knee which is the subject of this claim
during that timeframe." The affidavit states that Ms. Biter was aware that Employee saw
Dr. Garside in the latter part of August 2014, but "[a]t or about that time I was not
advised [Employee] sustained or claimed a new injury to his knee." The affidavit states
that Ms. Biter was not aware that Employee saw Dr. Garside again on Tuesday
September 23, 2014, and that Employee worked the remainder of that week "at full
duty." The following statements in the affidavit address Ms. Biter's discussions with
Employee concerning when his alleged new injury occurred:

               On Monday morning, September 29, 2014, I received a slip from
      Tennessee Orthopaedic Alliance referencing Mr. Bradshaw being requested
      to work modified duty which would involve no climbing and no squatting.
      It was at this time I called Mr. Bradshaw while he was on a jobsite working
      full duty and sent him home per his work restrictions. From his home over
      the telephone, he advised he was on a particular jobsite, but did not recall
      the date. He said he was walking across the floor when he felt tightness in
      his knee. He went to the bathroom and his knee was swollen. He provided
      me two potential dates that the alleged injury could have occurred. When I
      looked up his timesheet for the jobsite identified by Mr. Bradshaw, he was
      not on that site on the dates provided. I went back to him and again he was
      not sure when it had happened.

              In discussing this further, I went over Mr. Bradshaw's timesheets
      with him over the telephone. He then picked a date at the jobsite where he
      thought the alleged incident could have occurred. He finally indicated it
      occurred on a Monday. He had been hanging ductwork on a lift, lowered
      the lift, got off the lift, started walking and at the time he was walking
      across the floor he felt tightness in the knee, and the knee became swollen.

       On May 6, 2015, the trial court entered an Expedited Hearing Order "holding that
[Employee] is not entitled to temporary disability or medical benefits." Employee timely
filed an Expedited Hearing Notice of Appeal on May 11, 2015. No transcript of the
proceedings or statement of evidence was filed. On May 27, 2015 the appeal was
submitted to the Workers' Compensation Appeals Board.

                                 Standard of Review

       The standard of review to be applied by this Board in reviewing a trial court's
decision is statutorily mandated and limited in scope. Specifically, "[t]here shall be a

                                           5
presumption that the findings and conclusions of the workers' compensation judge are
correct, unless the preponderance of the evidence is otherwise." Tenn. Code Ann. § 50-
6-239(c)(7) (2014). The limited circumstances warranting reversal or modification of a
trial court's decision are detailed in the statute:

                The workers' compensation appeals board may reverse or modifY
       and remand the decision of the workers' compensation judge ifthe rights of
       any party have been prejudiced because findings, inferences, conclusions,
       or decisions of a workers' compensation judge:

             (A) Violate constitutional or statutory provisions;
             (B) Exceed the statutory authority of the workers' compensation
             judge;
             (C) Do not comply with lawful procedure;
             (D) Are arbitrary, capricious, characterized by abuse of discretion, or
             clearly an unwarranted exercise of discretion; or
             (E) Are not supported by evidence that is both substantial and
             material in the light of the entire record.

Tenn. Code Ann.§ 50-6-217(a)(3) (2015).

       In applying the standard set forth in subparagraph (E) above, courts have
construed "substantial and material" evidence to mean "such relevant evidence as a
reasonable mind might accept to support a rational conclusion and such as to furnish a
reasonably sound basis for the action under consideration." Clay County Manor, Inc. v.
State, Dep't of Health & Env't, 849 S.W.2d 755,759 (Tenn. 1993) (quoting Southern Ry.
Co. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984)). Like other courts
applying the standard embodied in section 50-6-217(a)(3) (2015), we will not disturb the
decision of the trial court absent the limited circumstances identified in the statute.

                                        Analysis

        Tennessee Code Annotated section 50-6-239(d)(l) (2014) establishes a different
standard of proof for the issuance of interlocutory orders at expedited hearings than the
standard of proof required at compensation hearings. An employee need not prove every
element of his or her claim by a preponderance of the evidence in order to obtain relief at
an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, slip
op. at 4, 5 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). At an expedited hearing, an
employee has the burden to come forward with sufficient evidence from which the trial
court can determine that the employee is likely to prevail at a hearing on the merits. !d.

      To be compensable under the workers' compensation statutes, an injury must arise
"primarily out of and in the course and scope of employment .... " Tenn. Code Ann. §

                                            6
50-6-102(13) (2014). An injury means "an injury by accident ... arising primarily out of
and in the course and scope of employment, that causes death, disablement or the need
for medical treatment of the employee." !d. For an injury to be accidental, it must be
"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, and
shall not include the aggravation of a preexisting disease, condition or ailment unless it
can be shown to a reasonable degree of medical certainty that the aggravation arose
primarily out of and in the course and scope of employment." Tenn. Code Ann. § 50-6-
102(13)(A) (2014). "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). "An injury causes death,
disablement or 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 death, disablement or need for medical treatment, considering all causes." Tenn. Code
Ann.§ 50-6-102(13)(C) (2014). "The opinion of the treating physician, selected by the
employee from the employer's designated panel of physicians .· .. shall be presumed
correct on the issue of causation but this presumption shall be rebuttable by a
preponderance ofthe evidence." Tenn. Code Ann.§ 50-6-102(13)(E) (2014).

       Furthermore, an employer takes an employee "as is" and assumes the
responsibility of the employee having a preexisting condition aggravated by a work-
related injury that might not affect an otherwise healthy person. Hill v. Eagle Bend Mfg.
Inc., 942 S.W.2d 483, 488 (Tenn. 1997). An employer is "liable for disability resulting
from injuries sustained by an employee arising out of and in the course of his
employment even though it aggravates a previous condition with resulting disability far
greater than otherwise would have been the case." Baxter v. Smith, 364 S.W.2d 936, 942-
43 (Tenn. 1962). In Trosper v. Armstrong Wood Products, Inc., 273 S.W.3d 598 (Tenn.
2008), the Tennessee Supreme Court discussed previous cases concerning the rule that an
employer bears the risk of aggravation of an employee's preexisting condition. Noting
disparate results under similar circumstances in earlier cases, the court "resolved to
provide some clarity for the trial courts." !d. at 607. Citing the court's holding in Smith v.
Smith's Transfer Corp., 735 S.W.2d 221 (Tenn. 1987), as providing "the proper
framework where an employee seeks compensation on the grounds that a work injury has
aggravated a pre-existing injury or condition," the Tennessee Supreme Court reiterated
"that the employee does not suffer a compensable injury where the work activity
aggravates the pre-existing condition merely by increasing the pain." !d. at 607. The
court continued, "[h]owever, if the work injury advances the severity of the pre-existing
condition, or if, as a result of the pre-existing condition, the employee suffers a new,
distinct injury other than increased pain, then the work injury is compensable." !d. See
also Poindexter v. Roadway Express, No. W2013-01968-SC-WCM-WC, 2014 Tenn.
LEXIS 695, at *8-9 (Tenn. Workers' Comp. Panel Sept. 29, 2014). But see Foreman v.
Automatic Sys., 272 S.W.3d 560, 576 (Tenn. 2008) (where employee's work injury only

                                              7
temporarily aggravated her preexisting condition, the surgery performed to address the
preexisting condition was not causally related to the work injury).

        In this appeal, Employee contends he "provided sufficient evidence to establish an
injury within the meaning of the workers' compensation statute," and Employee asserts
that he "should be awarded temporary disability benefits." The trial court found that
Employee "stepped from a scissor lift on or about August 11, 2014, and experienced pain
and swelling in his right knee." The trial court also found that "[u]pon learning that the
symptoms arising from the August, 2014 work incident possibly resulted in a 'new'
injury, [Employee] timely reported the August, 2014 work incident to [Employer]."
Finding that Employee "identified a specific incident, identifiable by time and place" that
occurred while he performed his job duties as required by section 50-6-102(13) (2014)
for an injury to be accidental, the trial court then addressed whether there was evidence
"shown by a reasonable degree of medical certainty" that the August 20 14 incident was
either a new injury arising primarily out of and in the course and scope of employment or
an aggravation of a preexisting condition arising primarily out of and in the course and
scope of employment.

        Employee emphasizes in his position statement the trial court's finding that the
September 22, 2014 MRI study "suggests a 'new, distinct' stress reaction, not previously
identified on the diagnostic testing .... " Employee asserts the "Defendant in this case
has not made any allegations that the tibial stress fracture reported by [Employee] did not
arise primarily from his work activities." (Emphasis added). While Employee is not
burdened at the expedited hearing with "proving each and every element of the claim by
a preponderance of the evidence," McCord v. Advantage Human Resourcing, No. 2014-
006-0063, slip op. at 4, 5 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015), Employee is
burdened with presenting sufficient evidence from which the trial court may determine
"that the injured employee would likely prevail at a hearing on the merits." Tenn. Code
Ann. § 50-6-239(d)(l) (2014).         Contrary to Employee's assertion, under these
circumstances Employer has no burden of proof with respect to the issue of medical
causation.

        Dr. Garside's October 21, 2014 report states that Employee "returns today in
followup of his right tibial stress fracture;" however, the September 22, 2014 MRI report
identifies "[ s]tress reaction edema" and not a stress fracture. Dr. Garside addressed the
stress injury in the September 23, 2014 report as "some associated development of stress
reaction and bone marrow edema." The "IMPRESSION" included in Dr. Garside's
September 23, 2014 report includes "[ s]tress injury right medial tibial plateau," and the
"PLAN" states that Employee "has frequent signs of stress reaction and worsening
chondromalacia," but the medical records do not otherwise indicate or suggest that
Employee sustained an acute stress "fracture" of the medial tibial plateau. More
importantly, none of the medical records address the cause of the stress reaction/injury or
the worsening chondromalacia. These conditions could be the natural progression of the

                                            8
January 2014 injury and unrelated to the alleged August 2014 incident. It is Employee's
burden to prove through appropriate expert medical opinions that these conditions were
caused by the alleged work injury or that the alleged work injury advanced the severity of
these conditions. To date, Employee has not met this burden.

        Although noting that the September 22, 2014 MRI study "suggests a 'new,
distinct' stress reaction, not previously identified," the trial court found that Employee
"failed to demonstrate that the August 11, 2014 work incident caused a 'new and distinct'
injury or 'advanced the severity' of the pre-existing right knee injury." Having failed to
present sufficient evidence to demonstrate a new injury or an injury that advanced the
severity of Employee's preexisting condition caused by the August 11, 2014 incident, the
trial court concluded that Employee "is not likely to prevail at a hearing on the merits."
The medical records and affidavits introduced at the expedited hearing support the trial
court's findings and conclusions, and we cannot say that the trial court erred in
determining that Employee is not likely to prevail at a hearing on the merits.

                                                    Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate
against the trial court's conclusion that Employee failed to demonstrate that the August
11, 20 14 work incident caused a new and distinct injury or advanced the severity of the
preexisting right knee injury. Thus, the trial court did not err in denying the requested
disability benefits and the medical benefits related to the alleged August 2014 injury. 1
Additionally, we find that the trial court's decision does not violate any of the standards
identified in Tennessee Code Annotated section 50-6-217(a)(3) (2015). Accordingly, the
trial court's decision is affirmed and the case is remanded for any further proceedings that
may be necessary.




1
  Neither the decision of the trial court nor this opinion affects Employee's right to the medical benefits provided in
the June 25, 2014 court-approved Agreed Order of Compromise and Settlement.

                                                           9
