                    TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                      WORKERS’ COMPENSATION APPEALS BOARD

Ralph Joseph Lallo                                      )   Docket No. 2015-06-0287
                                                        )
v.                                                      )
                                                        )    State File No. 33804-2015
Marion Environmental, Inc.                              )


                                    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

 Mark Rassas                                                         X    rassaslaw@aol.com
 Alex B. Morrison                                                    X    abmorrison@mijs.com
 Robert Durham, Judge                                                X    Via Electronic Mail
 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


Ralph Joseph Lallo                          )   Docket No. 2015-06-0287
                                            )
v.                                          )
                                            )   StateFileNo. 33804-2015
Marion Environmental, Inc.                  )
                                            )
                                            )
Appeal from the Court of Workers'           )
Compensation Claims                         )
Robert Durham, Judge                        )


                     Affirmed and Remanded- September 4, 2015


The employee reported suffering pain in his right arm while pulling up carpet in the
course and scope of his employment. Approximately five days later, the employee
alleged an aggravation or additional injury to his right arm while assisting his supervisor
with a personal task at work. Three weeks later, he was terminated. The employee
alleges that he is entitled to both medical benefits and temporary disability benefits. The
employer provided a panel of physicians, but refused to schedule an authorized
appointment pending receipt of prior medical records. The trial court ordered the
employer to provide medical benefits, but denied the claim for temporary disability
benefits "at this time." Both parties appealed. Having carefully reviewed the record, we
affirm the trial court's interlocutory order and remand the case for any further
proceedings as may be necessary.

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

Mark Rassas, Clarksville, Tennessee, for the employee-appellant/appellee, Ralph Joseph
Lallo

Alex B. Morrison, Knoxville, Tennessee, for the employer-appellant/appellee, Marion
Environmental, Inc.


                                            1
                          Factual and Procedural Background

       The employee, Ralph Joseph "Joe" Lallo ("Employee"), is a fifty-three year-old
resident of Montgomery County, Tennessee.             He was employed by Marion
Environmental, Inc. ("Employer") as an environmental technician. Employee testified
that he worked as an emergency responder, assisting with clean-up of industrial spills,
accident scenes, crime scenes, and other hazardous accident sites.

       On April 2, 2015, Employee was working at a site which required pulling up
carpet. Employee testified that the carpet had many staples affixing it to the stairs, and as
he pulled hard, "something popped in my arm." After taking a short break, he continued
working, but relied more on his left arm. A co-worker corroborated Employee's
testimony, stating that he heard Employee's expression of pain when he jerked the carpet.

        Employee testified that he informed his supervisor, Mark Lucas, of the incident
the following day. Mr. Lucas denied receiving notice of the incident at that time, but
admitted becoming aware of the carpet-pulling incident "several days after" April 7,
2015. After the April 2 incident, Employee worked in the office. On April 7, 2015, he
and a co-worker were approached by Mr. Lucas, who was experiencing back discomfort.
Mr. Lucas asked Employee's co-worker to "pop his back." After the co-worker was
unable to "get his back to pop," Employee offered to try. Employee testified, "when I
picked him up the second time, something in my arm really give [sic], and I went down
to the floor in pain."

       Later that day, Employee informed Mr. Lucas that he needed to go to the doctor.
He went to his personal physician, Dr. Wilson, who recommended that he see an
orthopedic physician at Premier Orthopaedics, the same group which previously had
treated Employee's shoulder. The Premier physician who examined him recommended
an MRI, but Employee was unable to afford the up-front expense associated with that
test. Employee testified that he has had no medical care since April 22, 2015. Mr. Lucas
confirmed that he informed Employer's Health and Safety Manager, Paul Van Alstyne,
on April22, 2015, that Employee was alleging a work-related injury.

        On April 30, 2015, Thomas Gallant, Employer's co-owner and vice-president,
came to the Nashville location and asked to speak with Employee in the presence of his
supervisor, Mr. Lucas. Mr. Gallant informed Employee that "we've decided to go in a
different direction," and that he was being terminated. He gave Employee a Separation
Notice, which stated "lack of work" as the sole basis for separation. Mr. Gallant testified
that it was during this meeting when he first became aware that Employee alleged to have
sustained a work-related injury or injuries.



                                             2
        In addition, Mr. Gallant testified that he and Employer's president, his ex-wife,
discussed Employee's job status the evening prior to the termination and decided to let
him go due to poor job performance and an alleged violation of Employer's "no
moonlighting" policy. However, Mr. Gallant admitted that he did not state these reasons
to Employee during the course of the termination meeting. He also admitted that the
Separation Notice did not indicate that Employee was terminated for cause. Furthermore,
Mr. Lucas admitted that he had never advised Employee of poor job perfonnance and had
never discussed with Employee a "no moonlighting" rule since he, himself, was unaware
of this rule prior to Employee's termination meeting.

       Following his termination, Employee sent written notice of his alleged work injury
to Employer on or about April 30, 2015. Thereafter, Employee filed a Petition for
Benefit Determination on May 12, 2015, seeking both temporary disability benefits and
medical benefits. Following unsuccessful mediation efforts and the issuance of a Dispute
Certification Notice, Employee filed a Request for Expedited Hearing, which was held on
July 21, 2015. Following the issuance of the Expedited Hearing Order Granting Medical
Benefits, both parties filed Notices of Appeal. The record on appeal was transmitted to
the Clerk of the Workers' Compensation Appeals Board on August 28, 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 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;
      (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.




                                           3
                                        Analysis

                                    Medical Benefits

       The trial court's decision to award medical benefits is supported by the record.
Employer's position that it should not be required to provide medical benefits until after
it has received Employee's prior medical records is untenable. Tennessee Code
Annotated section 50-6-239(d)(l) expressly authorizes a trial court to order medical
benefits "upon determining that the injured employee would likely prevail at a hearing on
the merits." In addressing this language, we have previously explained:

      [A]n employee need not prove each and every element of his or her claim
      by a preponderance of the evidence at an expedited hearing to be entitled to
      temporary disability or medical benefits, but must instead present evidence
      sufficient for the trial court to conclude that the employee would likely
      prevail at a hearing on the merits in accordance with the express terms of
      section 50-6-239( d)(l ). A contrary rule would require many injured
      workers to seek out, obtain, and pay for a medical evaluation or treatment
      before his or her employer would have any obligation to provide medical
      benefits. The delays inherent in such an approach, not to mention the cost
      barrier for many workers, would be inconsistent with a fair, expeditious,
      and efficient workers' compensation system. See Tenn. Code Ann. § 4-3-
      1409(b)(2)(A) (2014). Moreover, we note that since an expedited hearing
      is interlocutory in nature, either party may present additional evidence at
      the final compensation hearing and ask the trial court to reverse or modify
      the interlocutory order.

McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *9-10 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

         In the present case, Employer does not dispute that Employee suffered pain and
symptoms in his right arm on April 2, 2015 while pulling up carpet at a job site.
Employee's testimony on this issue was corroborated by a co-worker. Further,
Employee's supervisor admitted that he became aware of the alleged work accident
"within several days" of April 7, 2015. Moreover, he testified that he informed the
company's Health and Safety Manager of the work accident on or about April 22, 2015.
Finally, Employee provided written. notice of the alleged injury on or about April 30,
2015, within thirty days of the occurrence. See Tenn. Code Ann. § 50-6-201(a)(l)
(20 14 ). Under these circumstances, Employee has come forward with sufficient evidence




                                            4
that he suffered a work injury and that he provided proper notice of the work injury to
                                                                                 1
support the trial court's order compelling Employer to provide medical benefits.

        Moreover, we note Employer's argument in its Position Statement in Support of
Interlocutory Appeal that "it should have the opportunity to obtain all medical records
relevant to [Employee's] right arm prior to scheduling an Evaluation [sic] with Dr.
Huffman." (Emphasis added). However, the trial court did not order an "evaluation"
with Dr. Huffman. Instead, the trial court ordered "medical care for [Employee's]
injuries" and "medical treatment for these injures as required by Tennessee Code
Annotated section 50-6-204 (2014)." The trial court further ordered that an appointment
be scheduled with Dr. Huffman "without additional delay." It is for Dr. Huffman to
determine the extent and nature of the medical treatment, if any, that is reasonable and
necessary as a result of Employee's alleged work-related injury. In addition, Dr.
Huffman is in the best position to determine what additional information, including past
medical records, he may need to review. The trial court's determinations on these issues
are affirmed.

                                   Temporary Disability Benefits

        The record further supports the trial court's determination that Employee has not
established eligibility for temporary disability benefits based on the evidence submitted
to date. The evidence is undisputed that Employee continued to work after the alleged
work injuries and that Employer had work available for him prior to his termination. It is
unnecessary at this stage to address whether Employee's termination was "for cause."2
The trial court's interlocutory order does not preclude the possibility that Employee may
establish eligibility for temporary disability benefits in the future. Therefore, Employee's
appeal of this issue is without merit.

                                     Costs and Attorneys' Fees

       In his Position Statement submitted in support of his appeal, Employee asks for
"costs of the expedited hearing and appeal" and "a reasonable attorney's fee." We find
nothing in the record or the statutes to support an award of costs or attorney's fees at this
interlocutory stage and we decline to award such costs or fees.

1
  Given that an authorized medical appointment has not yet occurred and no expert medical opinions have
been offered, it is premature to address whether Employee suffered an aggravation or subsequent injury to
his right arm on April 7 while assisting his supervisor with a personal task at work, and whether this
incident is a "direct and natural consequence" of the original work injury.
2
  On its Notice of Appeal, Employer listed "claimant's for-cause employment termination, and its impact
on TTD benefits" in its Statement of the Issues. However, Employer did not include Employee's
termination as an issue in its Position Statement in Support of its Interlocutory Appeal or otherwise
discuss it. Regardless, given that the trial court denied Employee's claim for temporary benefits in its
interlocutory order, we decline to address this issue.

                                                   5
                                       Conclusion

        At this interlocutory stage, we affirm the trial court's findings that Employee has
met his burden of establishing entitlement to medical benefits but has not established
eligibility for temporary disability benefits. Additionally, we find that the trial court's
order does not violate any of the standards set forth in Tennessee Code Annotated section
50-6-217(a)(3) (2015). Therefore, we affirm the decision of the trial court and remand
this case for any further proceedings as may be necessary.



                                                            . Conner, Judge
                                                           Compensation Appeals Board




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