                IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                                 AT KNOXVILLE

    MICHAEL PICKENS,                                       )    Docket No.: 2015-03-0100
             Employee,                                     )
                                                           )
v.                                                         )    State File Number: 95792-2014
                                                           )
UNITED PARCEL SERVICE,                                     )
         Employer,                                         )    Judge Lisa A. Knott
And                                                        )
                                                           )
LIBERTY MUTUAL INSURANCE                                   )
COMPANY,                                                   )
         Insurance Carrier.                                )


                 EXPEDITED HEARING ORDER GRANTING BENEFITS


        This matter came before the undersigned workers' compensation judge on the
Request for Expedited Hearing filed by the employee, Mr. Pickens, pursuant to Tennessee
Code Annotated section 50-6-239 (2014). The present focus of this case is Mr. Pickens'
back condition. The central legal issue is whether Mr. Pickens has established that he is
likely to succeed at a hearing on the merits that his back condition arose primarily out of
and in the course and scope of his employment. For the reasons set forth below, the Court
finds that Mr. Pickens is entitled to medical and temporary disability benefits. 1

                                                History of Claim

      Mr. Pickens is a forty-year-old resident of Knox County, Tennessee. UPS employed
Mr. Pickens as a package driver.

      Mr. Pickens alleged that he sustained a back injury while working on December 2,
2014. Mr. Pickens alleged that his knee pain increased due to operating the clutch of the
package car. After manipulating his position in the driver's seat to alleviate his knee
1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order as
an appendix.

                                                           1
    injury, he began experiencing back pain. Mr. Pickens gave notice of his injury to his
    supervisor, Pam Booher, on December 3, 2014.

       Also on December 3, 2014, Mr. Pickens sought treatment with Erin E. Jacques,
FNP-BC, with his primary care physician, Dr. Jeffrey Boruff's office, for his complaints,
who recommended that he be excused from work until December 10, 2014, for a low back
mJury. (Ex. 5.) Two days later, UPS directed Mr. Pickens to see Dr. Christopher
Copeland, at Occupational Health Systems, for evaluation? Mr. Pickens gave a history of
left knee pain for approximately two years that increased four to five months ago, from
driving a manual truck at work. He started sitting in a different position to alleviate his
knee pain and began experiencing back pain. (Ex. 6.) Mr. Pickens testified that Dr.
Copeland's nurse asked him questions for approximately forty-five minutes; Dr. Copeland
was in the room for sixty to seventy-five seconds and did not perform a physical exam. Dr.
Copeland opined that the injury was not work-related.

        On December 8, 2014, Mr. Pickens attempted to return to work but could not
complete his route due to the pain. Since UPS denied the claim, Mr. Pickens continued to
treat with Dr. Boruff's office. On December 13, 2014, Mr. Pickens underwent an MRl,
which revealed a herniated disc and an annular tear. (Ex. 5.) Upon follow up, NP Jacques
restricted Mr. Pickens from working. (Ex. 5.)

        On March 12, 2015, Mr. Pickens submitted a causation questionnaire to Dr. Boruff.
Dr. Boruff opined, "to a reasonable degree of medical certainty, I believe Mr. Pickens [sic]
injuries are related to his work at UPS." Dr. Boruff further opined, "the injury occurred on
December 2, 2014, assessed in office on December 2, 2014, he has been unable to perform
job duties since." (Ex. 5.)

       Mr. Pickens filed a Petition for Benefit Determination seeking medical and
temporary benefits on March 31, 2015. The parties did not resolve the disputed issues
through mediation, and the Mediating Specialist filed a Dispute Certification Notice. Mr.
Pickens filed a Request for Expedited Hearing, and this Court heard the matter on
December 15, 2015. At the Expedited Hearing, Mr. Pickens asserted that, although he
originally thought operating the manual transmission truck caused his back pain, both Dr.
Boruff and Dr. Koenig opined his back condition was caused by lifting heavy packages at
UPS. UPS countered that Dr. Copeland opined that Mr. Pickens' back condition is not
work-related, and the opinions of Drs. Boruff and Koenig do not establish that Mr.

2
   Mr. Pickens testified that UPS did not provide him with a panel of physicians. Mr. Pickens also stated that his
supervisor, Ms. Booher, came to the appointment with Dr. Copeland; had a lengthy conversation with the office
manager; and when he left the exam room, she said, "I guess you are upset," which indicated to him that she was
aware of the outcome of the exam before he exited the room. UPS' business manager, Russell Powers, testified and
did not refute that UPS did not provide Mr. Pickens with a panel of physicians. However, the pmties did not mark the
Dispute Certification Notice box for "Whether Employer is obligated to provide a panel of physicians upon notice
fi·om Employee of an alleged injury." Therefore, the Court did not address this specific issue. See Tenn. Code Ann. §
50-6-239(b)(l) (2014).

                                                         2
    Pickens' back condition arose primarily out of his employment.

                                Findings of Fact and Conclusions of Law

       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 (20 14 ). The employee in a workers' compensation claim has the
burden of proof on all essential el ments of a claim. Tindali v. Waring Park Ass 'n, 725
S.W.2d 935, 37 (Tenn. 1987); 3 cott v. Integrity taffing Solutions, No. 2015-01-0055,
2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug.
18, 2015).

       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, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8,
9 (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. Id. This lesser
evidentiary standard "does not relieve an employee of the burden of producing evidence of
an injury by accident that arose primarily out of and in the course and scope of
employment at an expedited hearing, but allows some relief to be granted if that evidence
does not rise to the level of a 'preponderance of the evidence."' Buchanan v. Carlex Glass
Co., No. 2015-01-0012,2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Tenn. Workers'
Comp. App. Bd. Sept. 29, 20 15).

       For injuries on or after July 1, 2014, an employee must show that he suffered an
accidental injury caused by an incident, or specific set of incidents, arising primarily out of
and in the course and scope of employment, and identifiable by time and place of
occurrence. Tenn. Code Ann. § 50-6-102(13)(A) (2014). Cumulative trauma conditions
are not covered unless the condition "arose primarily out of the employment." Tenn. Code
Ann. 50-6-301(b) (2014). "Arising primarily out of and in the course and scope of
employment" requires a showing, to a reasonable degree of medical certainty, that the
injury causing disablement or the need for medical treatment contributed more than fifty
percent considering all causes. Tenn. Code Ann. § 50-6-102(13)(C) (2014). "Shown to a
reasonable degree of medical certainty" means that, in the opinion of the treating physician,
it is more likely than not considering all causes. Tenn. Code Ann. § 50-6-102(13)(D)

3
  The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-July
I, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation Law,
and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCordv. Advantage Human Resourcing, No. 2014-06-0063,2015 TN Wrk. Comp. App. Bd. LEXIS
6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 20 15).

                                                            3
(20 14 ).

       Mr. Pickens saw NP Jacques on December 3, 2014, and that note contained the
following:

        Onset one day ago. Location of pain is lower back. There is no radiation of
        pain. The patient describes the pain as ache and dull. Symptoms are
        aggravated by pushing, standing, twisting and works at UPS handling
        packages which has probably called [sic] back sprain.

        Patient Plan: Lumbar pain started yesterday, probably r/t lifting heavy
        packages at work.

(Ex. 5.)

      On March 23, 2015, Dr. Boruff opined that Mr. Pickens' injuries are related to his
employment at UPS.

       Dr. Koenig performed an independent medical evaluation for Mr. Pickens on
November 10, 2015, and issued a thorough and detailed eight-page report. The following
opinions were contained in Dr. Koenig's report:

        Diagnoses attributed to the 2 December 2014 reported workmen's camp-
        related injury: Lumbosacral strain
        Small paracental L5-S1 HNP at L%-S1 with improved, currently
        nonverifiable left radiculopathy
        L5-S 1 annular tear

       [T]his orthopedic surgeon concurs that with the implication made by Dr.
       Boruff that the repetitive clutching per se is not what caused his lumbar
       symptoms. Again repetitive clutching may indeed exacerbate the patient's
       preexisting osteoarthritis of the left knee, which however, is not evaluated in
       this IME, which is limited to the lumbar spine. The patient's potential altered
       posture secondary be stated within a reasonable degree of medical certainty.
       However, it appears that the implication noted within Dr. Boruffs notes as
       well as the implication verbalized to the patient by the nurse at Occupational
       Health Systems are correct in determining that the most likely source of the
       patient's lumbar spine pathology is the repetitive lifting as described by the
       patient as follows: "140 miles a day, 85-115 stops/packages per day, lifting
       up to 70 pounds, even on rare occasions 150 pounds."

       The patient's incorrect lay perception of the mechanism of injury (i.e.
       repetitive clutching and/or poor posture) should not obviate the multiple and

                                             4
           more professional assessments (i.e. those of an occupational nurse, primary
           care physician, and this orthopedic surgeon) that all similarly point to the
           occupational exposure of repetitive bending, lifting, and twisting as being the
           legitimate etiology of his symptoms, with a high degree of medical certainty.

       It should be mentioned that the patient has only one mildly contributing
       associated factor in the form of a mildly increased BMI (at 6-foot 4-inch and
       250 pounds). NO other associated factors (i.e. smoking, prior lumbar injury,
       etc.) are noted. The patient displays absolutely no signs of symptom
       magnification or malingering at the present time.

       The Patient's care and treatment has been appropriate to date by his primary
       care physician, including NSAIDs (meloxicam), muscle relaxers (Flexeril),
       and physical therapy, coupled with judicious use of epidural steroid
       injections (presumably on the left at L5-S 1). All of these have been directed
       to the WC-related injury reported on 2 Dec. 2014.

       The above impairment rating is calculated based on the patient's history that
       he is unable to receive any additional care and thus has indeed reached
       maximum medical improvement at this juncture. The patient would
       potentially benefit in the future of occasional, judicious repeat of epidural
       steroid injections on the left at L5-S 1. He does retain a 6% whole person
       impairment rating as a result of the above workmen's compensation-related
       InJury.

       This orthopedic surgeon would indicate that a functional capacity evaluation
       (FCE) has not yet been obtained that would objectively define the patient's
       exact work capacity. In lieu of such an FCE, it is this orthopedic surgeon's
       professional opinion however that such a test would likely approximate the
       following recommendations: No lifting greater than 30 pounds, no repetitive
       bending, stooping, or squatting, the allowance for frequent changes in
       positions, with no position (i.e. standing, walking, sitting) maintained for
       more than two hours without the ability to change.

(Ex. 7.)

        The issue in this case is whether Mr. Pickens' back condition arose primarily out of
and in the course and scope of his employment, or stated another way, that Mr. Pickens'
employment contributed more than fifty percent in causing his back condition, considering
all causes. Three physicians have provided causation opinions. UPS stated, in its
Memorandum in opposition to Mr. Pickens' Request for Expedited Hearing, that "[i]t is
undisputed that Dr. Copeland was the authorized treating physician selected by Dr. Pickens
for treatment," and thus his opinion is presumed correct. (T.R. 4.) However, the Expedited

                                                 5
    Hearing testimony established that UPS chose to direct Mr. Pickens to Dr. Copeland rather
    than providing a panel of physicians as required by Tennessee Code Annotated Section 50-
    6-204(3)(A)(i) (2014). Therefore, Dr. Copeland's opinion is not entitled to the statutory
    presumption. Based on Mr. Pickens' unrefuted testimony that Dr. Copeland did not
    perform a physical exam, did not obtain x-rays, and was only in the exam room for sixty to
    seventy-five seconds, the Court does not place much weight on his opinion that Mr.
    Pickens' back condition was not work-related.

        Mr. Pickens testified that Dr. Boruff has been his primary care physician for
approximately twenty years. On Mr. Pickens' first visit with Dr. Boruff's office, the NP
related his back pain to "lifting heavy packages at work." (Ex. 5.) Dr. Boruff opined that
Mr. Pickens' back condition is related to his employment at UPS. (Ex. 5.) Dr. Koenig,
who is an orthopedic surgeon, performed a thorough and detailed record review and
physical examination. Dr. Koenig opined "with a high degree of medical certainty" that
Mr. Pickens' back condition resulted from his UPS employment activities. Dr. Koenig
considered other potential causes of Mr. Pickens' back condition (such as smoking and
prior back injuries) and found that none, other than one mildly contributing factor in the
form of a mildly increased BMI, existed. (Ex. 7.) The Court finds that Mr. Pickens has
established, through the opinions of Drs. Boruff and Koenig, that he is likely to proceed at
a hearing on the merits that his back condition arose primarily from his UPS employment.

        Tennessee law provides that an employer must pay temporary disability benefits
until the employee reaches maximum medical improvement so long as the employee can
prove an inability to work due to a compensable injury. Simpson v. Satterfield, 564 S.W.2d
953, 955 (Tenn. 1978). An employee is entitled to receive temporary partial disability
benefits, pursuant to Tennessee Code Annotated section 50-6-207(2) (2014), when "the
temporary disability is not total." Stem v. Thompson Servs., No. M2010-01566-WC-R3-
WC, 2011 Tenn. LEXIS 742, at *27 (Tenn. Workers' Comp. Panel July 26, 2011); Jewell
v. Cobble Construction and Arcus Restoration, No. 2014-05-0003, 2015 TN Wrk. Comp.
App. Bd. LEXIS 1, at *22 (Tenn. Workers' Comp. App. Bd. Jan. 12, 2015).

        Dr. Boruff opined that, as a result of his back condition, Mr. Pickens was unable to
work from December 2, 2014, to March 23, 2015. 4 (Ex. 5.) Mr. Pickens testified that Dr.
Boruff has never released him to return to work. The last provided note from Dr. Boruff's
office is April 20, 2015. While that note references that Mr. Pickens "is still currently out
of work due to pain and inability to complete job responsibilities," there is no written off-
work restriction to reflect he was unable to work as a result of the work injury. Dr. Koenig
did not address Mr. Pickens' ability or inability to work prior to his exam on November 10,
2015. However, he did assign permanent restrictions of no lifting greater than thirty
pounds, no repetitive bending, stooping, or squatting, the allowance for frequent changes in

4
 Dr. Boruff's letter says "12/2/14." However, Mr. Pickens testified that he finished his shift on December 2, 2014.
The Court infers that Dr. Boruff intended to say December 3, 2014.

                                                        6
positions, with no position (e.g., standing, walking, sitting) maintained for more than two
hours without the ability to change. (Ex. 7.) Mr. Powers testified that a UPS package
driver is required to be able to lift up to seventy pounds without assistance. He also
testified that someone with a thirty-pound lifting restriction would be unable to perform the
duties of a package driver and that he was not aware of any light-duty work available at
UPS.

      The Court finds that Mr. Pickens is entitled to temporary total disability benefits
from December 3, 2014, until March 23, 2015. Mr. Pickens may be entitled to additional
temporary total or temporary partial disability benefits from March 24, 2015, until
November 10, 2015, when he was placed at maximum medical improvement. However,
Mr. Pickens did not provide a medical opinion to establish to establish his inability to
work, or ability to work with restrictions, from March 24, 2015, to November 10, 2015.
Therefore, the Court is unable to address temporary benefits for that period at this time.

       Based on the foregoing, Mr. Pickens has come forward with sufficient evidence
from which this Court concludes that he is likely to prevail at a hearing on the merits. His
requests for medical and temporary disability benefits are granted at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Medical care for Mr. Pickens' injuries shall be paid and UPS or its workers'
      compensation carrier shall provide Mr. Pickens with medical treatment for these
      injuries as required by Tennessee Code Annotated section 50-6-204 (2014), to be
      initiated by UPS or its workers' compensation carrier either authorizing Dr. Koenig
      to treat as the authorized treating physician or providing Mr. Pickens with a panel of
      orthopedic physicians. In addition, UPS shall be responsible for payment of
      medical expenses to Dr. Boruffs office for treatment related to Mr. Pickens' work-
      related back injury. Medical bills shall be furnished to United Parcel Service or its
      workers' compensation carrier by Mr. Pickens or the medical providers.

   2. The amount of temporary disability benefit is $932.80 per week based on the
      stipulated maximum compensation rate.

   3. Payment of past-due benefits in the amount $14,924.80 of shall be made for the
      period from December 3, 2014, to March 23, 2015.

   4. This matter is set for an Initial (Scheduling) Hearing on February 16, 2016, at 9 a.m.

   5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
      with this Order must occur no later than seven business days from the date of entry
      of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
      (2014). The Insurer or Self-Insured Employer must submit confirmation of

                                             7
       compliance     with    this    Order     to    the    Bureau    by   email    to
       WCCompljance.Program@tn.gov no later than the seventh business day after entry
       of this Order. Failure to submit the necessary confirmation within the period of
       compliance may result in a penalty assessment for non-compliance.

   6. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email W Compliance.P1·ogram@tn.gov or by calling (615)
      253-1471 or (615) 532-1309.



       ENTERED this th• 22nd day \::mrr~



                                 Judge Lisa A. Knott
                                 Court of Workers' Compensation Claims

Initial (Sched uling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Lisa A. Knott, Court of
Workers' Compensation Claims. You must call 865-594-0109 or toll-free at 855-383-
0003 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.


Right t Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within seven business days of the date
      the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment

                                           8
   must be received by check, money order, or credit card payment. Payments can be
   made in person at any Bureau office or by United States mail, hand-delivery, or
   other delivery service. In the alternative, the appealing party may file an Affidavit
   of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
   fee. The Affidavit of Indigency may be filed contemporaneously with the Notice of
   Appeal or must be filed within ten calendar days thereafter. The Appeals Board will
   consider the Affidavit of Indigency and issue an Order granting or denying the
   request for a waiver of the filing fee as soon thereafter as is practicable. Failure to
   timely pay the filing fee or file the Affidavit of lndigency in accordance with
   this section shall result in dismissal of the appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal, may
   request, from the Court Clerk, the audio recording of the hearing for the purpose of
   having a transcript prepared by a licensed court reporter and filing it with the Court
   Clerk within ten calendar days of the filing of the Expedited Hearing Notice of
   Appeal. Alternatively, the parties may file a joint statement of the evidence within
   ten calendar days of the filing of the Expedited Hearing Notice of Appeal. The
   statement of the evidence must convey a complete and accurate account of what
   transpired in the Court of Workers' Compensation Claims and must be approved by
   the workers' compensation judge before the record is submitted to the Clerk of the
   Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of the
   evidence, specifying the issues presented for review and including any argument in
   support thereof. A party opposing the appeal shall file a response, if any, with the
   Court Clerk within five business days of the filing of the appellant's position
   statement. All position statements pertaining to an appeal of an interlocutory order
   should include: ( 1) a statement summarizing the facts of the case from the evidence
   admitted during the expedited hearing; (2) a statement summarizing the disposition
   of the case as a result of the expedited hearing; (3) a statement of the issue(s)
   presented for review; and (4) an argument, citing appropriate statutes, case law, or
   other authority.




                                           9
                                                  APPENDIX

Exhibits:
   • EXHIBIT 1: Affidavit ofMichael Pickens;
   • EXHIBIT 2: Week Wage Statement, Form C-41;
   • EXHIBIT 3: First Report of Work Injury, for date of injury ofDecember 2, 2014;
   • EXHIBIT 4: Notice of Denial of Claim for Compensation, Form C-23;
   • EXHIBIT 5: Medical Records of Internal West;
   • EXHIBIT 6: Medical Records of Occupational Health Systems;
   • EXHIBIT 7: Independent Medical Examination of Dr. Thomas Koenig

Technical record: 5
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Employer's Memorandum in Opposition to Employee's Request for Expedited
      Hearing
   5. Employer's Supplemental Memorandum in Opposition to Employee's Request for
      Expedited Hearing




5
  The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as allegations
unless established by the evidence.




                                                         10
                             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 22nd day of
December, 2015.


Name                      Certified   Via    Via      Service sent to:
                          Mail        Fax    Email
Chris Beavers, Esq.,                           X      chriswbeavers@yaboo. com
Employee's Counsel
Mandy Hancock, Esq.,                             X    Mandy .Hancock@banksandjones.
Employee's Counsel                                    com
Tyler D. Smith, Esq.                             X    Tyler.smjth@leitnerfinn.com
Employer's Counsel




                                         Penny Shrum, Clerk of Court
                                         Court of Workers' Compensation Claims
                                         WC.CourtCierk@tn.gov




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