                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Michael MacDonald                                        )   Docket No. 2015-02-0077
                                                         )
v.                                                       )
                                                         )    State File No. 24786-2015
Greene County Sheriff’s Department                       )


                                     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 September, 2015.
 Name                    Certified   First Class   Via   Fax       Via     Email Address
                         Mail        Mail          Fax   Number    Email

 Jonathan Cave                                                        X    wc@cavelawfirm.com
 Thomas Kilday                                                        X    tkilday@milligancoleman.com
 Brian K. Addington,                                                  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




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: Matthew.Salyer@tn.gov
             TENNESSEE BUREAU OF WORKERS' COMPENSATION
                WORKERS' COMPENSATION APPEALS BOARD
                                                                                    FILED
                                                                             September 4, 2015
Michael MacDonald                           ) Docket No. 2015-02-0077              TENNESSEE
                                                                              WORKERS ' COMPENSATION
                                            )                                    APPEALS BOARD

v.                                          )                                     Time: 7:35 AM


                                            )   State File No. 24786-2015
Greene County Sheriff's Department         )
                                           )
                                           )
Appeal from the Court of Workers'          )
Compensation Claims                        )
Brian K. Addington, Judge                  )


                 Affirmed and Remanded- Filed September 4, 2015


This interlocutory appeal involves a sheriffs deputy who suffered a work-related left
ankle injury and a subsequent right ankle it~jury at his home, which he contends is the
direct and natural consequence of the left ankle injury. The panel physician selected to
treat the employee's injuries opined that the right ankle injury was a direct and natural
consequence of the work-related left ankle injury. The employer denied compensability
of the right ankle injury, asserting it did not occur in the course and scope of
employment. Following the filing of Petitions for Benefit Determinations for both
injuries and unsuccessful efforts to resolve the parties' disputes through mediation, the
employee filed Requests for Expedited Hearings seeking rulings on file reviews without
evidentiary hearings. After consolidating the cases the trial court determined that the
second injury was a direct and natural consequence of the work-related left ankle injury
and awarded medical and temporary disability benefits. The employer has appealed,
asserting the trial court had no statutory authority to conduct an expedited hearing since
no catastrophic injury was involved and contesting the award of temporary disability
benefits. We affmn the trial court's order and remand the case for such additional
proceedings as may be necessary.

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

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Thomas L. Kilday, Greeneville, Tennessee, for the employer-appellant, Greene County
Sheriffs Department

Jonathan S. Cave, Greeneville, Tennessee, for the employee-appellee, Michael
MacDonald

                               Factual and Procedural Background

        This case involves the appeal of a trial court's expedited hearing order following
the trial court's review of the file without an evidentiary hearing. 1 We have gleaned the
factual background from the exhibits designated by the trial court as having been
admitted into evidence, the documents designated by the trial court as the technical
record, and the trial court's order. 2

         Michael MacDonald ("Employee") is a sheriffs deputy employed with the
Greene County Sheriffs Department ("Employer"). On October 3, 2014, while
responding to a call to a residence, Employee climbed an attic access ladder that broke,
causing him to fall and injure his left ankle. Dr. Todd Christensen, an orthopedic
surgeon, provided authorized medical care for Employee's left ankle injuries, which were
initially diagnosed as ligament sprains, a bone contusion with evidence of micro fracture,
and partial tearing of the distal Achilles. Subsequent diagnostic imaging revealed a
closed fracture of the talus. Employee was taken out of work through October 19, 2014,
and he was released to light duty work on October 20, 2014. Employer accommodated
the work restrictions, and Employee worked as a dispatcher at his pre-injury rate of pay
until February 26, 2015.




1
  Tenn. Comp. R. & Regs. 0800-02-21-.02(13) (2015) provides that "[a] workers' compensation judge
may issue an interlocutory order either awarding or denying temporary disability or medical benefits
based on a review of the documents submitted and without convening a formal hearing." Similarly, Tenn.
Comp. R. & Regs. 0800-02-21-.14(1 )(c) (20 15) provides that "the judge shall have the discretion to either
set the matter for hearing or enter an interlocutory order based on a review of the file upon determining
that no additional information is needed to determine whether the employee is likely to prevail at a
hearing on the merits of the claim."
2
   Rule 7.02 of the Court of Workers' Compensation Claims Practice and Procedures provides that
"[p]ursuant to Rule 0800-02-21-.14, the Court will make rulings in all Expedited Hearings upon
affidavits, depositions, and any other evidence timely filed with the Clerk unless a party requests and
obtains permission of the Court for a telephonic or in-person evidentiary hearing." Although the trial
court designated specific documents as the technical record and identified thirteen exhibits that ''the Court
admitted into evidence," without any objection to the trial court's consideration of the documents that
were timely filed with the Clerk, we treat all of the documents as having been properly considered by the
trial court.


                                                     2
       Employee fractured his right ankle on February 26, 2015. In an April 16, 2015
affidavit submitted with his Petition for Benefit Determination, he described the February
26, 2015 incident as follows:

       I was exiting my home to retrieve my empty garbage cans to bring them
       back to the house. With both of my hands empty, I took a step down out of
       the front door and onto my porch with my left foot. My left ankle gave out
       causing me to fall, landing on my right foot which resulted in the fracture
       of my right ankle.

Employee was immediately taken to the emergency room where he was diagnosed with a
distal fibular fracture with dislocation. The emergency room report states that Employee
"was taking garbage out and his left ankle 'gave out' on him and he fell forwards." The
report notes the history to include "[l]eft ankle fx injured Oct. 14, recently discontinued
crutches 1-2 weeks ago per orthopedics." Employee's right ankle was reduced with
traction at the emergency room, but post-reduction x-rays showed "some widening and
mildly displaced fibular fracture."

        Employee returned to Dr. Christensen on February 27, 2015. The report from that
visit states that Employee "was out walking when his left lower extremity gave way and
he struck [sic] on his right lower extremity in an odd way. He developed immediate pain
and deformity as it collapsed under him." Dr. Christensen recommended that Employee
undergo an open reduction with internal fixation of the right distal fibula, which was
performed without complication on March 2, 2015. Employee returned to Dr.
Christensen for his initial post-surgical visit on March 17, 2015. Dr. Christensen noted at
that time that Employee "can ambulate with wheel chair," and he prescribed a six-week
course of physical therapy.

       Dr. Christensen signed a letter dated March 24, 2015, stating "[i]n my opinion, it
is reasonable to say that the work-related left ankle injury on October 3, 2014, was a
contributing factor to the new injury of the right ankle that occurred on February 26,
2015." A second letter signed by Dr. Christensen and dated April 2, 2015, states the
following:

      I can say to a reasonable degree of medical certainty, considering all
      causes, that Mr. MacDonald's injury of his right ankle that occurred on
      February 26th, 2015 was a direct and natural consequence from the work-
      related-left ankle injury of October 3rd, 2014.

       Employee filed a Petition for Benefit Determination on April2, 2015, which noted
a February 26, 2015 injury date and requested temporary disability benefits and medical
benefits. On April14, 2015, Employer submitted a Form C-23 Notice of Denial of Claim
for Compensation stating as the basis for denial that the "[i]njury did not occur due to

                                            3
course and scope of employment. [Employee] was at home when incident occurred."
Two days later on April 16, 2015, Employee signed the affidavit addressing the February
26, 2015 incident that resulted in his right ankle fracture.

       Employee returned to Dr. Christensen on May 12, 2015, and Dr. Christensen
allowed Employee to return to modified work at that time. However, Employer did not
accommodate the work restrictions. On May 18, 2015, Employee filed a second Petition
for Benefit Determination, which asserted the October 3, 2014 work-related injury. This
petition sought temporary disability benefits and discovery. On June 23, 2015, Employee
signed a second affidavit that included the information contained in the April 16, 20 15
affidavit, but which also addressed the October 3, 2014 work injury as well as the time
Employee claimed to have missed from work as a result of the right ankle injury:

       I was taken off work due to the right ankle injury from February 26th, 2015
       to May 12th, 2015. I was placed on light duty work restrictions beginning
       on May 12th, 2015. I have not b en provided any work during this time. I
       am requesting medical benefits for my current injury to my right ankle in
       addition to temporary disability benefits dating back to the date of injury.

       Dr. Christensen signed a letter dated June 23, 2015, wherein he released Employee
to return to work on June 29, 2015, without restrictions. However, on July 16, 2015, he
signed a fourth letter assigning new restrictions limiting "sitting or standing . . . to 30
minutes at a time and with a 30 minute break afterwards." As noted in the trial court's
August 3, 2016 order, there is no indication in the medical records that Dr. Christensen
placed Employee at maximum medical improvement for his injuries. Employee has not
returned to work since the February 26, 2015 accident.

        The parties were unable to resolve their disputes in mediation. On May 27, 2015,
a Dispute Certification Notice was filed in connection with Employee's claimed February
26, 2015 injury. Employee filed a Request for Expedited Hearing on June 24, 2015,
seeking a ruling on his entitlement to benefits for the February 26, 2015 injury based on a
review of the file without an evidentiary hearing. On July 2, 2015, Employer filed a
response to the request for expedited hearing, asserting that "employee's reported injury
of February 26, 2015 did not arise out of his employment and did not occur within the
course and scope of his employment." Additionally, Employer's response asserted that
"employee's claim for temporary total disability benefits is without merit inasmuch as the
employee was released from medical care with no restrictions due to his reported injury
as reflected by the [June 23, 2015] medical statement."

        On July 10, 2015, a Dispute Certification Notice was filed in connection with
Employee's October 3, 2014 work-related left ankle injury. Employee filed a Request for
Expedited Hearing on July 21, 2015, concerning the October 3, 2014 work-related injury,
again seeking a ruling on the benefits due based on a review of the file without an

                                            4
evidentiary hearing. In a July 28, 2015 order, the trial court consolidated the two claims.
On August 3, 2015, the trial court issued an order granting medical and temporary
disability benefits finding that Employee "has satisfied his obligation of establishing that
his right-ankle injury of February 26, 2015, is a direct and natural consequence of the
underlying October 3, 2014 work-related injury." Employer timely filed an expedited
hearing notice of appeal on August 11, 2015. The record was received by the Clerk of
the Workers' Compensation Appeals Board on August 27, 2015.

                                   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
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 trial court's decision must be upheld unless the rights of a 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). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.

                                         Analysis

      Employer identifies three issues in its notice of appeal, as follows:

      1. No "catastrophic injury" exists which is the sole allowed statutory basis for an
         expedited hearing. [Tenn. Code Ann.] § 50-6-239(c)(10).
      2. Employee has been and is continuing to be paid sick leave at full pay for entire
         period for which [temporary total disability] has been ordered.
      3. Employee has been disabled from employment since July 2, 2015 for post
         traumatic stress disorder and severe anxiety unrelated to employment.




                                             5
                                              A.

        Employer's reliance on Tennessee Code Annotated section 50-6-239(c)(l0) (2014)
is misplaced. When the subsection is read in its entirety, it is clear that the intent of the
subsection is to provide a trial judge the discretion to give priority on his or her trial
docket to a case involving a "catastrophic injury." Tennessee Code Annotated section
50-6-239(d)(l) (2014) authorizes a workers' compensation judge, at the judge's
discretion, to "hear disputes over issues provided in the dispute certification notice
concerning the provision of temporary disability or medical benefits on an expedited
basis and enter an interlocutory order upon determining that the injured employee would
likely prevail at a hearing on the merits." The rules governing mediation and hearing
procedures of the Bureau of Workers' Compensation defme "Expedited Hearing" and
authorize a trial judge to issue an interlocutory order based on a review of the documents
submitted without convening a formal hearing:

       Expedited Hearing. A hearing to determine an issue of appropriateness of
       temporary disability or medical benefits prior to a hearing that results in a
       compensation order, conducted pursuant to these rules. A workers'
       compensation judge may issue an interlocutory order either awarding or
       denying temporary disability or medical benefits based on a review of the
       documents submitted and without convening a formal hearing.

Tenn. Comp. R. & Regs. 0800-02-21-.02(13) (2015).

        As noted, Tennessee Code Annotated section 50-6-239(c)(l0) provides a trial
judge the discretion to order that a claim be heard on an expedited basis and given
priority over all cases on the judge's trial docket "where the employee has suffered a
catastrophic injury." Nothing in the statutes or the Bureau's rules and regulations limits
an expedited hearing to claims involving alleged catastrophic irijures. Although it is clear
from the statutes and the Bureau's rules and regulations that a trial judge has the
discretion to conduct an expedited hearing with or without an evidentiary hearing to
address any claim asserted in a petition for benefit determination, in the instant case,
Employer did not object to the trial court's conducting an expedited hearing and did not
object to the issuance of an interlocutory order based on a review of the documents
without convening a formal hearing. As we have observed before, "when a party fails to
raise an issue in the trial court, the party waives its right to raise that issue on appeal."
Long v. Hamilton-Ryker, No. 2015-07-0023, 2015 TN Wrk. Comp. App. Bd. LEXIS 23,
at *14 (Tenn. Workers' Comp. App. Bd. July 31, 2015). "If the rule were otherwise,
parties could forego bringing to the trial court's attention a potentially dispositive error or
issue and then, if dissatisfied with the outcome, essentially ambush the trial court's
decision on appeal based on the error or issue that could have been raised below." !d. at
* 14-15. Thus, this issue is waived. Even if the issue had been properly raised, it would
have no merit.

                                              6
                                              B.
        Employer's second and third issues raise matters that were likewise not presented
to the trial court and concern allegations about which no evidence was presented to the
trial court. Specifically, contemporaneously with the filing of Employer's notice of
appeal, Employer filed a notarized statement of the payroll clerk for Greene County,
Tennessee, to which the payroll records of Employee for the period of February 11, 2015,
through July 28, 2015, were attached. Additionally, Employer filed a notarized statement
from an administrative assistant in the Greene County Sheriffs Department along with
four exhibits, two of which were not submitted to the trial court prior to the issuance of
the August 3, 2015 order awarding medical and temporary disability benefits.

       Our role in evaluating a trial court's decision on appeal entails taking into account
information the trial court had before it at the time the trial court decided the issues, as
opposed to considering information the parties may seek to present on appeal following
an adverse decision. Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN Wrk. Comp.
App. Bd. LEXIS 14, at *13 n.4 (Tenn. Workers' Comp. App. Bd. May 18, 2015). We
will not consider on appeal "testimony, exhibits, or other materials that were not properly
admitted into evidence at the hearing before the trial judge." Id. Likewise, as noted
above, we will not consider issues on appeal that were not raised in the trial court. See
Waters v. Farr, 291 S.W.3d 873, 918 (Tenn. 2009) (Koch, J., dissenting) ("One cardinal
principle of appellate practice is that a party who fails to raise an issue in the trial court
waives its right to raise that issue on appeal."). Accordingly, we decline to address
Employer's second and third issues.

                                        Conclusion

        For the foregoing reasons, we affirm the trial court's expedited hearing order.
Further, we find that the trial court's decision does not violate any of the standards set
forth in Tennessee Code Annotated section 50-6-217(a)(3). The case is remanded for any
further proceedings as may be necessary.




                                              ~    David F. Hensie;,Jlle
                                                   Workers' Compensation Appeals Board




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