                                                                                              FILED
                                                                                            March 10,2015
                                                                                           T:'O COL"RTOF
                                                                                       WORKERS' C O:\IPE:"'SATIO:"
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                  COURT OF WORKERS' COMPENSATION CLAIMS
                    DIVISION OF WORKERS' COMPENSATION


EMPLOYEE: Tracy Payne                              DOCKET#: 2014-01-0023
                                                   STATE FILE#: 60880-2014
EMPLOYER: D and D Electric                         DATE OF INJURY: August 1, 2014

CARRIER: The Hartford Ins. Co.


    EXPEDITED HEARING ORDER DENYING BENEFITS ON THE GROUND OF
                         COMPENSABILITY

        THIS CAUSE came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed on February 11, 2015 by Tracy Payne, the employee,
pursuant to Tennessee Code Annotated section 50-6-239(d). Mr. Payne requested an evidentiary
hearing pursuant to Rule 0800-02-21-.14(1)(b) of the Tennessee Comprehensive Rules and
Regulations. The undersigned convened a hearing of this matter by telephone on March 4, 2015.
Mr. Payne appeared pro se and attorney Blair Cannon represented the employer, D and D
Electric (D and D). Upon review of Mr. Payne's request, the evidence submitted, the testimony
of witnesses, the arguments of counsel, and in consideration of the applicable law, the Court
enters the following Expedited Hearing Order Denying Benefits on the Ground of
Compensability:

                                        ANALYSIS

                                           Issue

       Whether Mr. Payne sustained   an injury which arose primarily out of and in the course
and scope of employment.

                                     Evidence Submitted

       Employee was the only witness who testified. The Court received into evidence the
following exhibits:

           •   Exhibit 1-Records ofMemorial Health Care System (13 pages);
           •   Exhibit 2-Records of Memorial Hospital Wound Healing Center (16 pages);
           •   Exhibit 3-Records of University Diabetes & Endocrine Consultants (23 pages);
           •   Exhibit 4-Records ofDr. John Chrostowski (4 pages);

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               •    Exhibit 5-Records of Advanced Foot Care (54 pages); and
               •    Exhibit 6-Records of Hamilton Medical Center (24 pages).

       The Court designated the following as the technical record:

           •       Petition for Benefit Determination filed February 2, 2015;
           •       Dispute Certification Notice filed February 24, 2015;
           •       Request for Expedited Hearing filed February 24, 2015;
           •       Position statement of Mr. Payne; and
           •       Position statement ofD and D.

The Court did not consider attachments to the above filings unless admitted into evidence during
the Expedited Hearing. The Court considered factual statements in the above filings as
allegations unless established by the evidence.

                                           History of Claim

       Mr. Payne worked as an electrician forD and D. He claimed that he broke his left foot
while walking from his workplace to his truck on August 1, 2014. Mr. Payne asserted that he
gave D and D's owner, Brent Davidson, verbal notice of his alleged work-related foot injury the
day after the injury occurred. According to Mr. Payne, Mr. Davidson authorized him to seek
medical care for his left foot injury. He asserted that Mr. Davidson did not give him a panel and
did not designate a specific provider from which to seek treatment. Mr. Payne obtained
treatment at the emergency room at Memorial Heath Care Center (Memorial).

        By the next day, Mr. Payne experienced worsening left-foot pain and swelling and
developed a fever. He claimed that he reported this information to Mr. Davidson, who again
authorized him to seek medical care without offering a panel or designating a specific provider.
Mr. Payne sought medical care at Hamilton Medical Center in Dalton, Georgia (HMC). The
emergency physician admitted Mr. Payne as an in-patient at Hamilton. Mr. Payne's
hospitalization extended eight (8) days and he underwent surgery on his left foot while
hospitalized. Mr. Payne has not worked since the date of injury.

       On November 14, 2014, the Court convened a telephonic Expedited Hearing to consider
Mr. Payne's claim for medical and temporary disability benefits. By order dated November 24,
2014, the Court denied Mr. Payne's claim for temporary disability benefits, but ordered that D
and D provide Mr. Payne a panel for treatment of his left foot injury. D and D complied with the
Court's order by offering a panel from which Mr. Payne selected Dr. John Chrostowski.

                                       Employee's Contentions

        Mr. Payne contends that he gave timely notice of his injury to D and D's owner, who
gave him unrestricted authorization to obtain treatment of his injury. Accordingly, Mr. Payne
claims that D and D should pay for the emergency treatment he received at Memorial and for the
surgery and other services that he received while hospitalized at HMC.


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        Mr. Payne alleges that both the emergency room physician at Memorial and the surgeon
who operated on his left foot restricted him from prolonged standing and walking. Furthermore,
he asserts that, since the date of injury, he cannot stand for more than a short period of time
because of pain and swelling in his left foot. Since most electrician work requires prolonged
standing and walking, Mr. Payne claims that he is entitled to temporary disability benefits from
the date of injury until either the date of his release to return to work or the date he attains
maximum medical improvement.

                                   Employer's Contentions

         D and D argues that diabetes and pre-existing left foot conditions contributed to the
disability and need for medical treatment for which Mr. Payne seeks benefits. D and D contends
that it does not owe benefits because Mr. Payne did not establish by medical expert opinion that
the injury to his left foot arose primarily out of and in the course and scope of employment.

                          Findings of Fact and Conclusions of Law

                                       Standard Applied

        When determining whether to award benefits, a workers' compensation judge must
decide whether, based on the evidence introduced at the Expedited Hearing, the moving party is
likely to succeed on the merits at the Compensation Hearing. See generally, McCall v. Nat'l
Health Care Corp., 100 S.W. 3d 209, 214 (Tenn. 2003). In a workers' compensation action, the
injured employee shall bear the burden of proving each and every element of the claim by a
preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6).

                                        Factual Findings

       Upon consideration of Mr. Payne's testimony, the medical records admitted into
evidence, and the entire record, the Court makes the following factual findings:

           •   Mr. Payne suffered from diabetic neuropathy and a degenerative deterioration of
               his left foot and ankle known as Charcot's foot which pre-existed the occurrence
               of his alleged August 1, 2014, work injury; and
           •   The medical expert opinion admitted into evidence does not establish that Mr.
               Payne's left foot condition arose primarily out of and in the course and scope of
               employment.

                                  Application of Law to Facts

       Except in the most obvious, simple and routine cases, a claimant in a workers'
compensation case must establish a causal relationship between the claimed injury and the
employment activity by a preponderance of the expert medical testimony, as supplemented by
lay evidence. Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991). Prior to
reforms to the Workers' Compensation Law which came into effect July 1, 2014, an injured
worker could establish causation through credible lay testimony supported by equivocal medical


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expert opinion, such as by an opinion that an incident at work "could be" the cause of an injury.
Williams v. UPS, 328 S.W.3d 497, 504 (Tenn. 2010); Tindall v. Waring ParkAsso., 725 S. W. 2d
935, 937 (Tenn. 1987). Because Mr. Payne's injury occurred on August 1, 2014, he must meet a
more stringent evidentiary standard in order to establish a compensable claim.

        Under current law, "[a]n 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). The law further provides that: "An injury causes death,
disablement or the need for medical treatment only if it has been shown by a reasonable degree
of medical certainty that it contributed more than fifty percent (50%) in causing the death,
disablement or the need for medical treatment, considering all causes." Tenn. Code Ann. §50-6-
102(13)(C)(2014). Tennessee Code annotated section 50-6-102(13)(D) provides: "'Shown to a
reasonable degree of medical certainty' means that, in the opinion of the physician, it is more
likely than not considering all causes, as opposed to speculation or possibility."

         The parties stipulated to the medical records admitted into evidence at the Expedited
Hearing. The records of Advanced Foot Care contradict Mr. Payne's testimony that he did not
have left foot problems prior to August 1, 2014 (Ex. 5). While most of Mr. Payne's treatment at
Advanced Foot Care involved his right foot, the Advanced Foot Care records from Mr. Payne's
initial visit on August 22, 2013, revealed that he suffered from bone and joint abnormalities
bilaterally (Ex. 6, p. 4) (emphasis added). Specifically, Podiatrist Claire Bello III noted that Mr.
Payne did not have normal range of motion in either of his ankles or in the subtalar and midtarsal
joints of his feet (Ex. 6. p. 4). The podiatrist further noted bilateral lower extremity
misalignments and asymmetry, as well as digital contractures in the toes of Mr. Payne's feet (Ex.
6, p. 4).

         On December 17, 2013, Mr. Payne reported the development of a lesion on his left foot
(Ex. 6, p. 35). On December 24, 2013, Mr. Payne reported that "his left foot still swells across
the forefoot and ankle" (Ex. 6, p. 37). On December 31, 2013, Mr. Payne reported improvement
in his right foot and stated that "he would be even better if his left foot would stop swelling" (Ex.
6, p. 39). The Advanced Foot Care notes further indicate that Mr. Payne reported left foot
swelling on January 21, March 20, and April 1, 2014 (Ex. 6, pp. 41, 48-49, 50). The March 20,
2014, note indicates that the podiatrist gave Mr. Payne a "Unna boot" to treat the swelling in his
left foot (Ex. 6, pp. 48-49).

        Mr. Payne received treatment from two (2) orthopedic surgeons after August 1, 2014.
Dr. Dale Reed operated on Mr. Payne's left foot on August 6, 2014 (Exhibit 6, pp. 18-20). In a
September 25, 2014, report, Dr. Reed described Mr. Payne as a "poorly controlled diabetic" (Ex.
5, p. 10). At the Expedited Hearing, Mr. Payne admitted to being diabetic, but disagreed with
Dr. Reed's characterization that the diabetes was uncontrolled. Nonetheless, the Advanced Foot
Care Records indicate that Mr. Payne suffered poor wound healing due to diabetes and that a
portion of his right foot required amputation (Ex. 6, pp. 11-14).

       Dr. Reed diagnosed Mr. Payne with "a Charcot foot with overlying osteomyelitis with
extensive destruction of the bony structures" (Ex. 5, p. 10). The website of the American


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Orthopedic Foot & Ankle Society defines a Charcot foot and ankle as: "a syndrome in patients
who have neuropathy or loss of sensation. It includes fractures and dislocations of bones and
joints that occur with minimal or no known trauma." This article lists diabetes as a condition
which can result in a Charcot's condition (www.aofas.org/footcaremd/conditions/diabetic-
foot/Pages/Charcot ).

        When asked whether Mr. Payne's left foot condition is work-related, Dr. Reed stated: "I
can honestly say the Charcot foot and diabetic changes have likely been coming on for quite
some time" (emphasis added). Dr. Reed considered several possible scenarios by which a work-
related trauma "could have led" to the osteomyelitis in Mr. Payne's left foot that required
surgery. In summary, Dr. Reed opined" "[h]onestly, to the best of my medical knowledge I
cannot say for 100% certainty that this was or was not a work related injury that led to the
sequelae of events" (Ex. 6, p. 10).

         Dr. John Chrostowski saw Mr. Payne on January 22,2015 (Ex. 4. p. 1). Dr. Chrostowski
diagnosed the problems in Mr. Payne's left foot as a Charcot's neuropathy "that is in the
collapsed phase" (Ex. 4, p. 2). He recorded the following history from Mr. Payne: "he missed a
step while going down the stairs carrying a 30Lb bag of tools ... He heard or felt a pop ... the
patient has no prior history of similar problem" (Ex. 4, p. 1) (emphasis added). In his note,
Dr. Chrostowski opined: "[i]t is likely that this was a pre-existing condition that was aggravated
by the patient's work injury. It is not likely that the work injury created the whole problem" (Ex.
4, p. 3).

        Because Mr. Payne had left-foot conditions that pre-dated the alleged August 1, 2014,
date of injury, he must prove by medical expert opinion that his work injury "contributed more
than fifty percent (50%) in causing the injury considering all causes" (emphasis added) in order
to recover. See Tenn. Code Ann. § 50-6-102(13)(8)(2014). After reviewing the medical expert
opinions admitted into evidence at the Expedited Hearing, the Court finds that Mr. Payne did not
establish by a preponderance of the evidence that his left foot injury is work-related. The Court
bases its fmding on the following observations:

            •   When read as a whole, Dr. Reed states that he does not know if Mr. Payne's left
                foot injury is work-related;
            •   There is no indication that Dr. Chrostowski considered the necessary statutory
                standard (whether the claimed injury "contributed more than fifty percent (50%)
                in causing the injury considering all causes") in stating his opinion; and
            •   Dr. Chrostowski gave his opinion in consideration of the inaccurate assumption
                that Mr. Payne had no prior history of left foot problems.

       On the basis of the above, the Court finds that Mr. Payne failed to present an expert
medical opinion that established the work-relatedness of his claimed injury. Accordingly, the
Court must deny his claim.

        IT IS, THEREFORE, ORDERED that Mr. Payne's requests for medical and temporary
disability benefits are denied on the grounds of compensability.



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Initial Hearing:

         A Status Conference has been set with Judge Thomas Wyatt, Court of Workers
Compensation Claims, on July 1, 2015, at 9:00a.m. Eastern Time. You must call 615-741-2051
or toll free at 855-747-1721 to participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date and time to participate. Failure to
call in may result in a determination of the issues without your further participation. All
conferences are set using Eastern Time (ET).

     ISSUED AND FILED WITH THE COURT OF WORKERS' COMPENSATION
CLAIMS ON THE lOTH DAY OF MARCH, 2015.



                                                           Tennessee Court of Workers'
                                                           Compensation Claims
                                                           540 McCallie Avenue, Suite 600
                                                           Chattanooga, TN 37402


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)


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        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 ofthe filing ofthe appellant's position statement.

                                  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 1Oth day of March,
 2015.


Name                  Certified   First    Via    Fax       Via      Email Address
                      Mail        Class    Fax    Number    Email
                                  Mail
Tracy Payne                                                  X       tracypayne@beUsouth.net
Blair    Cannon,                                             X       Blair.cannon@thehartford.com
Atty.




                                                      Thomas Wyatt
                                                      Workers' Compensation Judge




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