                                                                                                                       FILED
                                                                                                                   March 21 , 2016
                                                                                                                    TN COURT OF
                                                                                                                WORKIRS ' COMP£NSATION
                                                                                                                       CLAJMS

                                                                                                                       TIMI 9:45AM




              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT KNOXVILLE

    DARCIE MOFFITT,                                        )    Docket No.: 2015-03-0211
             Employee,                                     )
v.                                                         )    State File Number: 41650-2015
TAKAHATA PRECISIONS,                                       )
        Employer,                                          )    Judge Lisa Lowe Knott
And                                                        )
TRAVELERS,                                                 )
        Insurance Carrier.                                 )
                                                           )

          EXPEDITED HEARING ORDER GRANTING PAST TEMPORARY
                         DISABILITY BENEFITS


        This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the employee, Darcie Moffitt, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is
whether Ms. Moffitt is entitled to past temporary total disability benefits from May 6,
2015, through December 22, 2015. The central legal issue is whether the authorized
treating physician assigned restrictions based on Ms. Moffitt's work injury or her
pregnancy. For the reasons set forth below, the Court finds Ms. Moffitt is likely to
prevail at a hearing on the merits that she is entitled to past temporary total disability
benefits. 1

                                               History of Claim

      Ms. Moffitt is a thirty-four-year-old resident of Scott County, Tennessee.
Takahata Precision employed Ms. Moffitt as a production operator.

       On August 13, 20 14, Ms. Moffitt slipped and fell injuring her left knee. Karen
West, FNP at Grace Primary Care, initially evaluated her. FNP West diagnosed Ms.
Moffitt with left-knee pain and released her to return to full duty on August 15, 2014. On
August 26, 2014, FNP West recommended referral to an orthopedic for evaluation. On
1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

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September 23, 2014, FNP West again recommended orthopedic evaluation and ordered a
left-knee MRI.

       Ms. Moffitt ultimately came to see orthopedic Dr. Michael O'Brien on November
4, 2014. Dr. O'Brien diagnosed Ms. Moffitt with left-knee pain and a possible meniscus
tear.   He returned her to work without restrictions but continued to treat her
conservatively.

       On December 5, 2014, Ms. Moffitt underwent a left-knee MRI, which revealed a
tear. After reviewing the MRI findings, Dr. O'Brien recommended surgery, and released
Ms. Moffitt to return to work without restrictions pending her surgery. At the pre-surgery
workup, Ms. Moffitt discovered she was pregnant. As a result, she was unable to proceed
with surgery and unable to take anti-inflammatory medication. On April 1, 2015, Dr.
O'Brien assigned Ms. Moffitt restrictions, and although Takahata was unable to
accommodate those restrictions, it refused to pay temporary disability benefits.

       On June 3, 2015, Ms. Moffitt filed a Petition for Benefit Determination (PBD)
seeking temporary disability benefits. The parties did not resolve the disputed issues
through mediation, and the Mediating Specialist filed a Dispute Certification Notice
(DCN). Ms. Moffitt filed a Request for Expedited Hearing, and this Court heard the
matter on March 2, 2016.

        At the Expedited Hearing, Ms. Moffitt asserted she is entitled to temporary
disability benefits because the only statutory mechanism for terminating benefits is non-
compliance, and it was not unreasonable for her to postpone surgery until after her
pregnancy. Takahata countered the delay in medical treatment and restrictions that
prevented Ms. Moffitt from working are the result of Ms. Moffitt's pregnancy, and it
would be unfair to penalize Takahata for her non-work-related pregnancy. At the
expedited hearing, Takahata's attorney conceded she did not have any case law to support
her position.

                       Findings of Fact and Conclusions of Law

                             Temporary Disability Benefits

        In this case, Takahata accepted Ms. Moffitt's injury as compensable and provided
her with medical benefits. The only disputed issue at this time is whether Ms. Moffitt is
entitled to past temporary disability benefits from May 6, 2015, through December 22,
2015. Because this case is in a posture of an expedited hearing, Ms. Moffitt need not
prove every element of her claim by a preponderance of the evidence in order to obtain
temporary disability benefits. 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). Instead, she must come forward with sufficient evidence from which

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    this Court might determine she is likely to prevail at a hearing on the merits. Id.; Tenn.
    Code Ann. § 50-6-239(d)(l) (2015).

           With regard to temporary disability benefits, our Appeals Board held that:

           As the name implies, an injured worker is entitled to temporary partial
           disability benefits, a category of vocational disability distinct from
           temporary total disability, when the temporary disability is not total. See
           Tenn. Code Ann. § 50-6-207(1)-(2) (2014). Specifically, while temporary
           total disability refers to the employee's condition while completely unable
           to work because of the injury until the worker recovers as far as the nature
           of the injury permits, "[t]emporary partial disability refers to the time, if
           any, during which the injured employee is able to resume some gainful
           employment but has not reached maximum recovery."

Mace v. Express Services, Inc., No. 2015-06-0059, 2015 TN Wrk. Comp. App. Bd.
LEXIS 49, at *7-8 (Tenn. Workers' Comp. App. Bd. Dec. 11, 2015), citing Williams v.
Saturn Corp., No. M2004-01215-WC-R3-CV, 2005 Tenn. LEXIS 1032, at *6 (Tenn.
Workers' Comp. Panel Nov. 15, 2005).

       Ms. Moffitt filed an affidavit outlining her treatment and restrictions, and it
contained the following pertinent information:

       •   On August 26, 2014, Dr. Timothy Smith referred her to see an orthopedic
           surgeon.
       •   She did not see an orthopedic surgeon until November 4, 2014, approximately ten
           weeks after her injury.
       •   On January 21, 2015, Dr. O'Brien recommended surgery on her left knee.
       •   At the pre-surgery workup on February 5, 2015, it was discovered that she was
           pregnant and surgery could not be performed.
       •   Dr. O'Brien assigned restrictions Takahata did not accommodate. After the April
           2015 restrictions were assigned, Takahata suspended her temporary disability
           benefits.
       •   Had it not been for Takahata's delay in providing treatment with an orthopedic
           surgeon, her surgery would have already been performed. 2 (Ex. 1.)

      The Court finds a review Dr. O'Brien's medical records necessary to address the
temporary disability issue. On April 1, 2015, Dr. O'Brien noted, "I really think she needs

2
  In an effort to refute that Takahata's actions or inactions delayed Ms. Moffitt's medical treatment, its attorney
argued details about the dates of the referrals and the dates it provided physician panels. The Court does not find her
argument persuasive because counsel provided no corroborating evidence.


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a job where she sits with her leg elevated as needed. May walk short distances and [if]
unable to accommodate this will probably have to be disabled until the end of her
pregnancy?" (Ex. 8.) On May 4, 2015, Dr. O'Brien noted, "Again I think both her
pregnancy and Workmen's Compensation injury contributes to her swelling. She
obviously had swelling and pain and problems to the left knee prior to the pregnancy, so
the injury is probably contributing more to her swelling problems than the pregnancy."
(Emphasis added.) (Ex. 8.) On June 24, 2015, Dr. O'Brien noted, "it is a combination of
both [the pregnancy and left knee injury] that are preventing her from working." Id

       After Dr. O'Brien imposed restrictions in April2015, the adjuster, Pam Terry, sent
him a letter asking, "Is this need to be on sit down work 51% or more related to the work
injury of 8/12/14 or 51% or more related to the pregnancy." Dr. O'Brien's response was,
"?More related to work injury." Ms. Terry also asked, "Why was the employee able to
work full duty until now?" To which Dr. O'Brien responded, "Less swelling." (Ex. 7.)
In an effort to establish Ms. Moffitt's inability to work was solely related to her
pregnancy, Adjuster Terry sent another letter to Dr. O'Brien. Dr. O'Brien answered,
"Yes" that but for the pregnancy Ms. Moffitt: would have undergone the surgery as
scheduled on February 26, 2015; would have been able to take anti-inflammatories to
reduce the swelling in her knee; and would have continued to work full duty up to the
date of surgery. (Ex. 6.)

      Ms. Moffitt argued it was reasonable for her to refuse surgery since she was
pregnant. In fact, Dr. O'Brien made the decision to delay surgery until after Ms.
Moffitt's pregnancy. 3 (Ex. 9.) To the extent relevant, the Court finds Ms. Moffitt
followed Dr. O'Brien's recommendation to delay surgery until after her pregnancy.
Therefore, any argument that Ms. Moffitt was non-compliant with medical treatment is
unpersuastve.

       Ultimately, Ms. Moffitt had her baby and sought follow-up treatment with Dr.
O'Brien on November 4, 2015. During that visit, Dr. O'Brien documented "left knee
swelling" and noted, "[Ms. Moffitt] stated that the swelling has worsened since the birth
of her son." (Ex. 9.)

       The Court finds there was a delay in Ms. Moffitt's orthopedic evaluation and
Takahata caused the delay. 3 Takahata suggests that but for Ms. Moffitt's pregnancy the
surgery would have taken place as scheduled. However, it is equally true that had
Takahata provided the orthopedic evaluation within three days of the referral, Dr.
O'Brien could have performed the surgery prior to Ms. Moffitt's pregnancy. Takahata

3
 At the expedited hearing, Ms. Moffitt objected to the introduction of Dr. O'Brien's updated medical records from
August 5, 2015, through November 4, 2015, as being irrelevant. The Court marked the records as Exhibit 9 and
designated them for identification purposes only. The Court finds Dr. O'Brien's updated records are relevant for
purposes of determining Ms. Moffitt's left-knee condition after having her baby. Therefore, Dr. O'Brien's updated
medical records are accepted into evidence as Exhibit 9.

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argued it would be unfair to penalize it for Ms. Moffitt's pregnancy. It would also be
unfair to penalize Ms. Moffitt for Takahata's delay in providing orthopedic treatment.

         Dr. O'Brien's records reflect Ms. Moffitt had left-knee swelling: following the
injury and prior to her pregnancy; during her pregnancy; and following the birth of her
child. Although Dr. O'Brien used a question mark in his response to Adjuster Terry's
first letter regarding the cause of the need for restrictions, he followed with, "more related
to work injury." In addition, even though Dr. O'Brien acknowledged that both the
pregnancy and the work injury were contributing to the swelling, which in turn led to the
restrictions, he noted in his records that the injury was probably contributing more.

       Based on the foregoing, and taking the evidence submitted as a whole, the Court
finds Ms. Moffitt has come forward with sufficient evidence from which this Court
concludes she is likely to prevail at a hearing on the merits in proving the workplace
accident, rather than her pregnancy, resulted in imposition of restrictions that inhibited
her ability to return to work. Therefore, her requests for temporary disability benefits
from May 6, 2015, through December 22, 2015, are granted at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Medical care for Ms. Moffitt's injuries shall continue to be paid by Takahata
       Precision or its workers' compensation carrier with authorized physician, Dr.
       O'Brien.

   2. The amount of temporary disability benefit is $195.33 per week based on Ms.
      Moffitt's average weekly wage of$293.30 (per the DCN).

   3. Payment of past-due benefits in the amount of $6,445.89 shall be made for the
      period from May 6, 2015, to December 22, 2015.

   4. It is the understanding of the Court that Takahata or its workers' compensation
      carrier began payment of temporary disability benefits following Ms. Moffitt's
      surgery and agreed to continue paying those benefits in regular intervals until she
      becomes ineligible. In the event Takhata decides to terminiate temporary
      disability benefit payments, Takahata's representative shall immediately notify the
      Bureau, Ms. Moffitt, and Ms. Moffitt's counsel, of the intent to terminate ongoing
      temporary disability benefits by filing Form C-26, citing the basis for the
      termination.

   5. This matter is set for an Initial (Scheduling) Hearing on May 3, 2016, at 9:30a.m.
      Eastern Time.



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    6. 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)
       (2015). The Insurer or Self-Insured Employer must submit confirmation of
       compliance      with    this     Order    to    the   Bureau     by     email    to
       WCCompliance.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.

    7. For questions regarding compliance, please contact the Workers' Compensation
       Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
       253-1471.


       ENTERED this the 21st day of March, 2016.



                                  Judge Lisa Lowe Knott
                                  Court of Workers' Compensation Claims



Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Lisa Lowe 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.




Rlgbt to App al:

       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."

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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
   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
   Indigency 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 ofthe 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.

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                                        APPENDIX

Exhibits:

       • EXHIBIT 1: Affidavit of Darcie Moffitt;
       • EXHIBIT 2: Notice of Controversy, Form C-27;
       • EXHIBIT 3: Wage Statement, Form C-41;
       • EXHIBIT 4: First Report of Work Injury, Form C-20;
       • EXHIBIT 5: Panel Physicians, Form C-42;
       • EXHIBIT 6: June 29, 2015 Questionnaire to Dr. O'Brien;
       • EXHIBIT 7: April 10, 2015 Questionnaire to Dr. O'Brien'
       • EXHIBIT 8: Medical Records ofDr. O'Brien; and
       • EXIBIT 9: Dr. O'Brien's updated Medical Records (August 5, 2015, to
         November 4, 2015).


Technical record:

            1)   Petition for Benefit Determination;
            2)   Dispute Certification Notice;
            3)   Request for Expedited Hearing; and
            4)   Takahata's Response to Request for Expedited Hearing.

       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.




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                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 21st day
ofMarch, 2016.


Name                      Certified Via Via          Service sent to:
                          Mail      Fax Email
Ameesh Kherani, Esq.,                     X          AKherani.DHDLaw@gmail.com
Ms. Moffitt's Counsel
Jennifer C. Schmidt,                           X     JCSCHMID@travelers.com
Esq.,
Takahata's Counsel




                                        ~--~m- ,~
                                                -C-le_r_k_~
                                                          _f_C_o_u_r_t   __________
                                        Court of orkers' Compensation Claims
                                        WC.CourtCierk@tn.gov




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