              TENNESSEE BUREAU OF WORKERS’ COMPENSATION
             IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                              AT NASHVILLE

Michael McDade,                                            )    Docket No. 2016-06-0432
           Employee,                                       )
v.                                                         )    State File No. 25490-2016
                                                           )
IGC Protection,                                            )    Judge Joshua Davis Baker
            Employer,                                      )
                                                           )
and                                                        )
                                                           )
AmTrust North America,                                     )
          Insurance Carrier.                               )

              EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS

       This matter came before the Court on July 5, 2016, on the Request for Expedited
Hearing filed by the employee, Michael McDade, pursuant to Tennessee Code Annotated
section 50-6-239 (2015). The present focus of this case is Mr. McDade’s entitlement to
temporary disability and medical benefits. The central legal issue is his likelihood of
success in proving he suffered an injury in the course and scope of his employment that
completely prevented him from working while he healed. The employer, IGC Protection,
claimed the injury did not occur while he was working for IGC. It also claimed Mr.
McDade’s injury is idiopathic.1 For the reasons set forth below, the Court finds Mr.
McDade would likely succeed at a hearing on the merits in proving his injury occurred in
the course and scope of his employment but would likely fail to prove the injury
prevented him working. The Court therefore holds IGC must provide Mr. McDade
further reasonable and necessary medical care for treatment of his injury. 2




1
  IGC attached a long list of defenses to the dispute certification notice. The majority concerns permanent rather
than temporary benefits.
2
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
                                     Claim History

       This case involves a shoulder injury from an unwitnessed fall. Mr. McDade
worked for IGC in motor-vehicle traffic control. In addition to this job, Mr. McDade also
worked for Ingram Barge Company. According to his Petition for Benefit Determination,
on March 15, 2016, Mr. McDade fell on top of some poles inside an IGC box truck and
dislocated his shoulder. No one witnessed the fall, but some coworkers saw him
immediately after. The first report of injury stated, “EE was walking and tripped on flag
stands causing unknown injury to unknown shoulder.” (Ex. 3.)

       Mr. McDade went to the emergency room and was diagnosed with an anterior left
shoulder dislocation. (Ex. 1.) ER workers performed a shoulder reduction to return Mr.
McDade’s shoulder to the socket and then x-rayed it. The x-ray showed no fracture, and
the hospital released him that same day.

       Mr. McDade received follow-up care from Dr. James Rubright at Premier
Orthopaedics & Sports Medicine. The patient intake information form Mr. McDade
completed at the initial visit listed his employer as Ingram Barge and stated he worked as
a chef. (Ex. 1 at 9.) Mr. McDade indicated on the form his injury resulted from an
accident but left blank the section concerning whether the accident occurred on the job.

       Dr. Rubright diagnosed Mr. McDade with left shoulder pain and recommended
medication. He released Mr. McDade to return to work with restrictions that prohibited
him from using his left arm. (Ex. 1 at 15.) Dr. Rubright also ordered an MRI. The MRI
revealed a fracture, and Dr. Rubright recommended surgery to repair it. He noted Mr.
McDade would likely be out of work for three to four months for surgery and recovery.
(Ex. 1 at 19.) On April 27, 2016, the same day Dr. Rubright recommended surgery, IGC
denied Mr. McDade’s claim. The denial notice stated the “injury did not arise out of the
course and scope of employment.” (Ex. 4.)

       After IGC denied his claim, Mr. McDade filed a Petition for Benefit
Determination (PBD) seeking temporary disability and medical benefits. The parties did
not resolve the disputed issues through mediation, and the Mediating Specialist filed a
Dispute Certification Notice (DCN). Mr. McDade filed a Request for Expedited Hearing
and this Court set the matter for an evidentiary hearing.

       At the hearing, with regard to the mechanism of injury, Mr. McDade testified that,
on the morning of March 15, 2016, while en route to work, he spoke on the telephone to
Jacob Austin, the owner of IGC, about retrieving car keys from the back of a box truck so
that Mr. McDade could use a vehicle for work that day. He stated the keys hung from a
hook or nail in the back of the box truck.

      At approximately 6:20 a.m., while it was still dark outside, Mr. McDade entered

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the box truck. He said the interior was dark, so he used his cell phone to light the area
and search for the keys. After he retrieved the keys and turned to leave, Mr. McDade
testified he tripped on some poles lying on the floor of the truck. He attempted to catch
himself as he fell but was unable to do so. He heard a “snap” and experienced intense
left shoulder pain. Mr. McDade exited the box truck, and his coworkers took him to the
hospital where he received emergency treatment detailed in the medical records.

        IGC questioned Mr. McDade about whether he tripped over the poles in the truck
and fell or simply fell on top of them. Mr. McDade admitted he did not state he tripped
in his affidavit or Petition for Benefit Determination. It is his testimony, however, that he
tripped and fell. IGC also asked Mr. McDade why he failed to indicate his injury was
work-related on the patient initial intake form at Dr. Rubright’s office. Mr. McDade said
he overlooked the question.

       As for his post-injury ability to work, Mr. McDade testified he could not return to
his job with Ingram following the March 15, 2016 accident because Ingram would not
allow him to resume working on a boat due to the condition of his arm. He, however,
admitted no doctor took him off work completely following his injury and stated he
returned to work for IGC on a couple of occasions. He testified he could not do his work
at IGC to full capacity because of his pain medication, but admitted IGC allowed him to
work within the restrictions that prohibited use of his left arm. Text messages between
Mr. McDade and Mr. Austin showed Mr. Austin offered him work.

        Mr. McDade further testified, despite being released to return to work with
restrictions, he could not work while taking pain medication because his head was “in a
fog.” He also stated he could do few things at work, such as lifting cones or signs, and
testified he essentially served as a “warm body” on the worksite.

        Mr. McDade argued his claim is work-related because the accident occurred while
retrieving keys inside the box truck in the course of his employment for IGC. He claimed
he mistakenly listed Ingram as his employer because he believed he had to use his private
insurance to get treatment.

       IGC argued Mr. McDade’s injury did not occur during his employment for IGC.
Instead, it claimed the injury occurred during his work for Ingram. It further argued that,
even if the injury occurred in the course and scope of his work for IGC, the injury is
idiopathic because Mr. McDade did not trip on the poles in the truck but simply fell on
top of them. IGC claims the distinction is important as Mr. McDade presented no proof
that falling on top of the poles was more injurious than simply falling on the ground.
Finally, IGC argued Mr. McDade failed to prove his injury prevented him working, so he
cannot recover temporary disability benefits.



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                        Findings of Fact and Conclusions of Law

       In order to grant the relief Mr. McDade seeks, the Court must apply the following
legal principles. Mr. McDade bears the burden of proof on all elements of his workers’
compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also Buchanan v.
Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5
(Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015). He need not prove every element of
his 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- 9 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). At
an expedited hearing, Mr. McDade has the burden to come forward with sufficient
evidence from which this Court can determine he is likely to prevail at a hearing on the
merits. Id. As further explained below, the Court finds Mr. McDade carried his burden
of proof with regard to causation and is therefore entitled to medical benefits for his
workplace injury. He cannot, however, recover temporary disability benefits at this time.

I.     Mr. McDade is entitled to continued medical treatment with Dr. Rubright
       and payment of all reasonable and necessary medical treatment previously
       provided.

       The Court considers the following statutory definitions in order to reach its
conclusions. The Workers’ Compensation Law defines an “injury” as “an injury by
accident . . . arising primarily out of and in the course and scope of employment, that
causes . . . the need for medical treatment.” Tenn. Code Ann. § 50-6-102(14) (2015).
Further, an injury is “accidental” only if the injury is caused by a specific incident, or set
of incidents, arising primarily out of and in the course and scope of employment[.] Tenn.
Code Ann. § 50-6-102(14)(A) (2015). Arising out of employment refers to causation.
Reeser v. Yellow Freight Sys., Inc., 938 S.W.2d 690, 692 (Tenn. 1997). An injury arises
out of employment when there is a causal connection between the conditions under which
the work is required to be performed and the resulting injury. Fritts v. Safety Nat’l Cas.
Corp., 163 S.W.3d 673, 678 (Tenn. 2005). “An injury occurs in the course of
employment if ‘it takes place within the period of the employment, at a place where the
employee reasonably may be, and while the employee is fulfilling work duties or engaged
in doing something incidental thereto.’” Hubble v. Dyer Nursing Home, 188 S.W.3d 525,
534 (Tenn. 2006) (citing Blankenship v. Am. Ordnance Sys., LLC, 164 S.W.3d 350, 354
(Tenn. 2005)).
       Here, Mr. McDade credibly testified he entered the dark box truck to search for an
automobile key. While in the truck, he testified he tripped over poles lying on the floor,
fell, and hurt his shoulder. IGC provided no compelling proof controverting his
testimony.
      However, IGC did offer a defense to the claim. IGC questioned Mr. McDade
concerning whether he tripped over the poles or fell on top of them and argued that this
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distinction might result in his claim being deemed idiopathic under Byrom v. Randstad N.
Am., L.P., No. M2011-3057-WC-R3-WC, 2012 Tenn. LEXIS 152 (Tenn. Workers’
Comp. Panel Mar. 8, 2012).
       In the Byrom case, which also involved a workplace fall, the Panel found the facts
were insufficient to establish a work-related hazard caused the fall. In Byrom, no one
witnessed the accident and the employee could not remember what happened. The
employer’s office manager inspected the area and found no workplace hazards. Under
these circumstances, the Panel determined that, while it was entirely possible a work-
related hazard caused employee to fall, the employee failed to carry his burden of proving
the claim. Id. at 17.
       Here, Mr. McDade testified he tripped over the poles and fell, unlike the employee
in Byrom who provided no concrete proof of the mechanism of injury. IGC provided no
countervailing testimony, and the Court finds Mr. McDade’s testimony credible despite
IGC’s claims of inconsistency in his written statements. Accordingly, the Court finds
IGC’s idiopathic defense unpersuasive.
       IGC also cited lack of medical causation as a defense. Thus, the court must
examine the statutory authority regarding medical causation. “An injury causes death,
disablement or the need for medical treatment only if it has been shown to a reasonable
degree of medical certainty that it contributed more than fifty percent (50%) in causing
the death, disablement or need for medical treatment, considering all causes.” Tenn.
Code Ann. § 50-6-102(14)(C) (2015). 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. Tenn. Code Ann. § 50-6-102(14)(D)
(2015). Thus, causation must be established by expert medical testimony, and an
employee’s lay testimony, without corroborative expert testimony, does not constitute
adequate evidence of medical causation. Scott v. Integrity Staffing Solutions, No. 2015-
01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *12 (Tenn. Workers’ Comp. App.
Bd. Aug. 18, 2015).
       However, at an expedited hearing, an employee need not establish medical
causation by a preponderance of the evidence. See Lewis v. Molly Maid, et al., No. 2015-
06-0456, 2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *8-9 (Tenn. Workers’ Comp.
App. Bd. Apr. 20, 2016). Rather, if the employee comes forward with sufficient evidence
to support that a work event resulted in injury, it may be sufficient to support an order
compelling an employer to provide a panel. Id. For this reason, IGC’s argument
regarding medical causation at this stage of the proceedings is premature.
       So, the Court holds IGC must provide Mr. McDade continuing reasonable and
necessary medical treatment with Dr. Rubright, whom the Court approves as the
authorized treating physician. See Young v. Young Electric Co., et al., No. 2015-06-0860
2016 Tn. Wrk Comp. App. Bd. LEXIS 24, at *18-19 (Workers’ Comp. App. Bd. May 25,
2016) (Employee who established a relationship with a treating physician before the
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employer offered medical care, despite notice of the injury, had the right to continue
treating with that physician.). Additionally, the Court holds IGC must pay the costs of all
reasonable and necessary medical care Mr. McDade underwent following the injury. See
id. at *16-18.
II.      Mr. McDade’s claim for temporary disability benefits is denied at this time.
       Mr. McDade additionally seeks temporary disability benefits. In Jones v. Crencor
Leasing and Sales, No. 2015-06-0332, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7
(Tenn. Workers’ Comp. App. Bd. Dec. 11, 2015), the Appeals Board held:

         An injured worker is eligible for temporary disability benefits if: (1) the
         worker became disabled from working due to a compensable injury; (2)
         there is a causal connection between the injury and the inability to work;
         and (3) the worker established the duration of the period of disability.
         Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978).

Until these criteria are established, the Court is unable to grant such benefits.

       Here, Mr. McDade admitted no physician took him completely off from work. He
also admitted IGC offered him accommodated work. He, however, turned down the
work because he felt he could not perform it while on pain medication. Mr. McDade’s
subjective belief is insufficient to show an inability to work in light of his release to
return to restricted duty. Because no physician took him completely off from work and
IGC attempted to accommodate his condition, Mr. McDade failed to demonstrate any
period of disability for which benefits are recoverable. The Court, therefore, denies his
request for temporary disability benefits.

IT IS, THEREFORE, ORDERED as follows:

      1. Medical care for Mr. McDade’s injuries shall be paid, and Dr. James Rubright
         shall serve as the authorized treating physician. Medical bills shall be furnished to
         IGC or its workers’ compensation carrier by Mr. McDade or the medical
         providers.

      2. IGC shall also pay the cost of any reasonable and necessary medical care Mr.
         McDade underwent following the accident.

      3. Mr. McDade’s claim for temporary disability benefits is denied at this time.

      4. This matter is set for an Initial (Scheduling) Hearing on August 29, 2016, at 8:00
         a.m. (CDT).

      5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
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   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.

6. 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 25th DAY OF JULY, 2016.



                               ________________________________________
                               Judge Joshua Davis Baker
                               Court of Workers’ Compensation Claims




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Initial Hearing:

An Initial (Scheduling) Hearing has been sent for August 29, 2016, at 8:00 a.m. (CDT).
You must call 615-741-2113 or toll free at 855-874-0474 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. All conferences are set using Central Time (CT).


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 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
      $75.000. 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

                                            8
   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:

    1.   Medical Records of Michael McDade
    2.   Affidavit of Michael McDade
    3.   First Report of Injury
    4.   Notice of Claim Denial
    5.   Child Support Arrearage Information

Technical record:3

    1. Petition for Benefit Determination
    2. Dispute Certification Notice
    3. Request for Expedited Hearing




3
  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 foregoing was sent to the
 following recipients by the following methods of service on this the 25th day of July,
 2016.

Name                Certified   First Class   Via   Fax      Via     Email Address
                    Mail        Mail          Fax   Number   Email


Michael McDade         X                                       X     1108 Cardinal Lane, Hendersonville,
                                                                     TN 37075
Fred Baker,                                                    X     fbaker@wimberlylawson.com
Attorney



 _______________________________________
 Penny Shrum, Court Clerk
 Wc.courtclerk@tn.gov




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