Stallion, Samuel v. Trugreen, L.P. , 2016 TN WC 301 ( 2016 )

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TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
SAMUEL STALLION, ) Docket No.: 2016-01-0471
Employee, )
v. )
TRUGREEN, L.P., ) State File Number: 70707-2015
Employer, )
AND ) Judge Thomas Wyatt
NEW HAMPSHIRE INS. CO. )
CARRIER,
EXPEDITED HEARING ORDER FOR MEDICAL AND TEMPORARY
PARTIAL DISABILITY BENEFITS
This matter came before the undersigned Workers' Compensation Judge on
December 1, 2016, for an in-person Expedited Hearing requested by Samuel Stallion
pursuant to Tennessee Code Annotated section 50-6-239 (2016). Mr. Stallion sought
medical and temporary disability benefits for back pain and right-leg weakness that
allegedly occurred because of a February 25, 2016 work injury. The central issues
presented at the Expedited Hearing were whether Mr. Stallion introduced sufficient
expert medical opinion to establish he sustained a compensable injury and, if he did,
whether he is entitled to temporary disability and additional medical benefits. For the
following reasons, the Court determines Mr. Stallion is entitled to additional medical
benefits and temporary partial disability benefits. 1
History of Claim
Mr. Stallion is a fifty-five-year-old resident of North Carolina who allegedly
1
A complete listing of the technical record and the exhibits admitted into evidence is attached as an appendix to this
Order.
1
injured his spine 2 on February 25, 2016, while attempting to lift a tailgate 3 on the lawn
service truck his employer, TruGreen, L.P, assigned him to drive. (T.R. 1 at 1.)
TruGreen initially accepted the compensability of the claim, authorizing care at
Physician's Care, a walk-in facility. 4 (T.R. 15.)
Mr. Stallion received treatment at Physician's Care on nine occasions from March
1 through May 30. (Ex. 8 at 1, 5, 12, 14, 17, 19, 21, 25, 29.) Mr. Stallion gave a history
of injury while lifting a heavy object at work and stated he had not previously
experienced the low back pain with which he presented. !d. at 5. The Physician's Care
providers diagnosed him with lumbago and sciatica in his lumbar spine and prescribed
medication, physical therapy and an MRI. (Ex. 8.) Physician's Care never took Mr.
Stallion completely off work, but, at the first visit, restricted him from bending over,
climbing ladders, lifting or prolonged sitting. /d. at 1, 7, 12. The providers at Physician's
Care gradually reduced Mr. Stallion's restriction, over time, although he stayed under a
five-pound lifting restriction until May 23. 5 Jd. at 14, 17, 20, 22, 28.
On May 10, Physician's Care referred Mr. Stallion for orthopedic care. (Ex. 8 at
23.) TruGreen' s carrier offered Mr. Stallion an orthopedic panel from which he selected
Dr. Jay Jolley. (Ex. 3; Ex. 10 at 1; Ex. 15.) Dr. Jolley's initial visit note of June 27
documented that Mr. Stallion gave a history of suffering injury when the tailgate of his
work truck fell unexpectedly, causing him to instinctively try to catch it. Dr. Jolley
further noted that Mr. Stallion spun to the left when he tried to catch the falling tailgate
and, immediately afterward, noticed low back pain when he tried to lift the tailgate to
close it. /d. at 2. He also recorded that Mr. Stallion told him he had not experienced
back pain previous to the occurrence of the work injury. !d. Dr. Jolly reviewed the MRI
of Mr. Stallion's lumbar spine and diagnosed him with "1. Low back pain. 2. Sprain. 3.
Mild L3-4, L4-5 degenerative disc disease." 6 !d. at 3. He prescribed medication and
2
Mr. Stallion also complained of right-knee pain, but the evidence admitted during the Expedited Hearing did not
document treatment for a knee injury.
3
Mr. Stallion alleged that the tailgate weighed 700 pounds. (T.R. 1 at 1; Ex. 5 at 1.) During cross-examination, he
testified he did not know exactly how much the tailgate weighed, but stated that it felt like it weighed 700 pounds.
TruGreen's local manager testified during the Expedited Hearing that the tailgate weighed 150 pounds and the truck
in question was equipped with a mechanical device to help lower and raise the tailgate. Mr. Stallion testified the
mechanical device on the truck was defective on the date of injury, requiring him to lift the entire weight of the
tailgate himself.
4
Mr. Stallion received treatment for his work injury through the emergency room at Parkridge East Medical Center
on the date of injury. (Ex. 6 at 1.) Mr. Stallion testified he went to Parkridge because his supervisor at TruGreen
told him to go for a drug test after he reported injuring his back at work.
5
The note documenting the last visit at Physician's Care, which occurred May 30, did not address restrictions. (Ex.
8 at 29.)
6
The MRI report indicates the radiologist found that Mr. Stallion had "[a] broad disc protrusion and moderate
bilateral arthropathy result[ing] in mild canal and bilateral foramina! stenosis" at the L3-4 and L4-5 levels of his
lumbar spine. (Ex. 7.)
2
placed Mr. Stallion on restrictions of no lifting in excess of twenty pounds. Id. at 4.
TruGreen submitted letters and forms to Dr. Jolley to obtain his causation opinion.
In response to a causation letter, Dr. Jolley opined as follows to an inquiry whether Mr.
Stallion's injury was "caused by his work injury by more than 51% as opposed to any
other contributing factors or health conditions": ''the ddd [degenerative disc disease] is
not; yes to the sprain component." (Ex. 10 at 6.) In response to another question in the
letter, Dr. Jolley indicated that sixty percent of Mr. Stallion's need for treatment related
to the fact he sprained his back at work, while forty percent related to the degenerative
disc disease in his lumbar spine. ld.
Dr. Jolley's next visit with Mr. Stallion on August 1 was his last. (Ex. 10 at 8.)
In the note documenting this visit, Dr. Jolley opined that Mr. Stallion's degenerative disc
disease was of sufficient severity ''to cause pain" and might potentially require fusion
surgery; he also stated "the degeneration isn't work related." ld. at 9. Dr. Jolley kept Mr.
Stallion under the twenty-pound lifting restriction and noted "he will followup with [a]
workman's compensation doctor in North Carolina." Id. Mr. Stallion testified he had not
received any treatment for his alleged work injury since the August 1 visit with Dr.
Jolley.
On August 9, Dr. Jolley issued an addendum to his August 1 report, noting "[t]his
Addendum is prepared to replace information set out in the Office Note dated August 1,
2016[.]"7 (Ex. 10 at 10.) In the addendum, Dr. Jolley stated Mr. Stallion was at
maximum medical improvement and could return to regular duty. !d. Later, Dr. Jolley
signed a September 26 inquiry letter sent him by TruGreen's attorney, checking a box
that indicated Mr. Stallion does not require further treatment for his back sprain. (Ex. 12
at 1.)
As to Mr. Stallion's claim for temporary partial disability benefits, Physician's
Care released Mr. Stallion to return to work under restrictions following the initial,
March 1, visit. (Ex. 8 at 1.) Mr. Stallion testified during the Expedited Hearing that
TruGreen rarely assigned him work within his restrictions, but instead assigned him to
work his regular route. Mr. Stallion set forth in his affidavit, without rebuttal, that the
performance of his route duties required him to get in and out of a truck multiple times
per day; push, pull and carry a hose weighing forty to fifty pounds to spray lawns with
chemicals; and exert significant effort with his hands and arms while holding the nozzle
of the hose during the spraying process. (Ex. 5 at 1-2, 4.) He further testified that his
regular work at TruGreen increased his pain, which, in turn, made him slower in
completing his route. He also testified his pain medication made him lethargic to the
point he did not complete his work and stated he missed both full and partial days from
7
Dr. Jolley issued the addendum without seeing Mr. Stallion again. The parties did not introduce evidence as to
who asked Dr. Jolley to provide the addendum.
3
work because of symptoms associated with his work injury.
Mr. Stallion testified that, on June 21, TruGreen's management put him on a leave
of absence, citing a company policy limiting an employee's period flight duty work to
ninety days. 8 (Ex. 5 at 4-5.) He stated the loss of income he suffered due to this lay-off
resulted in his eviction from his home, thus necessitating that he relocate to his son's
home in North Carolina to avoid living on the streets. Mr. Stallion testified he has not
worked since his last day at TruGreen, although he contacted a TruGreen office in North
Carolina in an unsuccessful attempt to obtain his old position in his new location.
Mr. Stallion filed a Petition for Benefit Determination on April 18. {T.R. 1 at 1.)
When mediation did not resolve the parties' differences, the mediating specialist certified
medical and temporary disability benefits issues to the Court for determination. {T.R. 2
at 1.) Mr. Stallion filed his Request for Expedited Hearing on September 28.
During the Expedited Hearing, Mr. Stallion asked for past and future temporary
partial disability benefits and a panel from which to select a physician in North Carolina
to treat his work injury. TruGreen contended that Mr. Stallion did not establish through
expert medical opinion that his injury arose primarily out of and in the course and scope
of employment. It also argued Mr. Stallion is not entitled to a treating physician in North
Carolina because Dr. Jolley stated his work-related back sprain required no further
treatment. Lastly, TruGreen argued that, if Mr. Stallion is entitled to temporary partial
disability benefits, he is only entitled to payment of benefits through the date on which
Dr. Jolley placed him at maximum medical improvement.
Findings of Fact and Conclusions of Law
I. Compensability
The Court first addresses whether Mr. Stallion established that he sustained an
injury arising primarily out of and in the course and scope of his employment by
TruGreen. The Court applies the following legal principles in addressing this and the
other issues presented during the Expedited Hearing. Mr. Stallion bears the burden of
proof on all essential elements of his claim. Scott v. Integrity Staffing Solutions, No.
2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 {Tenn. Workers' Comp.
App. Bd. Aug. 18, 2015). However, in order to obtain relief at the Expedited Hearing
stage, he need not prove every element by a preponderance of the evidence. 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). Rather, he must
come forward with sufficient evidence from which the Court can determine he is likely to
8
Mr. Stallion testified he questioned why TruGreen placed him on a leave of absence for this reason because it
rarely allowed him to work light duty during the period in question. TruGreen did not introduce evidence
establishing what, if any, policy it had on the length it would provide an employee light duty work.
4
prevail at trial in establishing his injury is work-related and he is entitled to the relief he
requests. /d.
The Court's causation decision begins with its analysis of whether Mr. Stallion
proved he sustained a compensable injury under the definitions established by the
Workers' Compensation Law. Tennessee Code Annotated section 50-6-102(14)(A)
(20 16) defines a compensable injury as one resulting from a "specific incident, or set of
incidents, arising primarily out of and in the course and scope of employment." This
provision also addresses the compensability of an aggravation of a preexisting condition,
stating that workers' compensation coverage "shall not include the aggravation of a
preexisting disease, condition or ailment unless it can be shown to a reasonable degree of
medical certainty that the aggravation arose primarily out of and in the course and scope
of employment. " (Emphasis added.)
Section 50-6-102(14)(B) expands on the above defmitions by providing that an
injury arises primarily out of and in the course and scope of employment only if the
employee shows that the employment "contributed more than fifty percent in causing the
injury, considering all causes." Mr. Stallion must establish the work-relatedness of his
injury to a reasonable degree of medical certainty, meaning he must come forward with
expert medical opinion establishing a causal link between the alleged injury and the
employee's employment. See Tenn. Code Ann. § 50-6-102(14)(C) (2016). A medical
expert must state his or her opinion on causation under a "more likely than not" standard,
without resorting to speculation or mere possibility. /d. at§ 50-6-102(14)(0).
Because Dr. Jolley diagnosed Mr. Stallion with a back sprain superimposed on
preexisting lumbar degenerative disc disease, the Court decides this claim in view of
section 50-6-102(14)(A), which provides workers' compensation benefits to an employee
who establishes that an injurious incident at work aggravated an already-existing physical
condition. The above-quoted terms of Section 50-6-102(14)(A) direct the Court's
causation inquiry in aggravation of preexisting condition claims to whether the
aggravating event, and not the underlying preexisting physical condition that was
aggravated, arose primarily out of and in the course and scope of employment. This
interpretation is implicit in the general assembly's use of the term "aggravation," which
presupposes the condition itself predated the alleged injurious incident.
In analyzing the issue of whether the incident in which Mr. Stallion lifted the
tailgate of TruGreen's truck entitles him to workers' compensation benefits, the Court
finds instruction in three decisions of the Workers' Compensation Appeals Board that
affirmed awards of medical benefits in aggravation of preexisting condition cases. In
Miller v. Lowe's Home Centers, Inc., No. 2015-05-0158, 2015 TN Wrk. Comp. App. Bd.
LEXIS 40 (Tenn. Workers' Comp. App. Bd. Oct. 21, 2015), the employee fell at work
injuring his hip. Radiological testing indicated that severe preexisting arthritic changes
existed in the hip before the fall at work occurred. The employer denied hip replacement
5
surgery prescribed by the treating physician on the ground it was not liable for the
preexisting arthritis in the hip.
The trial court found the employee's fall at work aggravated the arthritic condition
in his hip and ordered the employer to pay for the prescribed surgery. The Appeals
Board affirmed, holding,
In the present case, it is undisputed that Employee had no prior difficulties
with his left hip and no limitations in work activities due to his left hip
before the August 31, 2014 work accident. It is undisputed that he suffered
a work-related injury when he fell onto his left side, and it is also
undisputed that he complained of radiating pain into his left hip following
the fall. Most significantly, Dr. Wade testified that the work accident
caused a "chronic exacerbation" of his preexisting hip condition. He
further stated that the need for hip replacement surgery was "hastened" by
the work accident. He concluded that Employee's pain following the work
accident was the "primary indication for the surgery."
!d. at 13-14.
In Sanker v. Nacarato Trucks, Inc., No. 2016-06-0101, 2016 TN Wrk. Comp.
App. Bd. LEXIS 27 (Tenn. Workers' Comp. App. Bd. July 6, 2016), the employee
suffered a compensable 2014 injury that was resolved through a settlement that
guaranteed the employee future medical benefits. In September 2015, the employee
sustained another work injury to the same part of the body, thus igniting a dispute as to
whether his need for treatment following the latter injury related to the 2014 claim or a
new 2015 injury. The parties presented competing expert medical opinions on the
causation issue. The trial court chose to apply the opinion of a physician who opined the
work-related aggravation in 2015 contributed to more than fifty percent of the
employee's need for surgery. The Appeals Board upheld the trial court decision, holding,
Thus, although the expert opinions concerning the precise apportionment of
responsibility differed, their opinions were consistent that Employee
suffered a work-related aggravation of his pre-existing condition and that
this aggravation caused or contributed to the need for additional medical
treatment, including surgery. It was within the trial judge's discretion to
accept the apportionment testimony of the authorized treating physician
over the opinion of Employer's medical expert.
!d. at *13.
In White v. Boles Trucking, No. 2016-04-0074, 2016 TN Wrk. Comp. App. Bd.
LEXIS 86, at *7-8 (Tenn. Workers' Comp. App. Bd. Nov. 14, 2016), the Appeals Board
6
affirmed a trial court finding that an employer was liable for a fusion surgery to correct a
preexisting spinal condition. Although the treating surgeon testified that radiological
testing did not demonstrate that the preexisting condition was anatomically advanced by
the work injury, the Appeals Board affirmed a finding the employee's condition was
work-related when the employee "was previously asymptomatic and the February 11
accident 'increased the instability between L4 and L5, which [exacerbated] his
symptoms."' Id. at *8.
While the above opinions present different underlying fact scenarios, the Court
notes the Appeals Board identified similar factual patterns in support of its affirmations
of the awards of benefits below. The Appeals Board noted in each claim the employee
there established that he or she sustained an actual injurious incident at work and that,
before the work-related injurious incident occurred, the employee's preexisting condition
was either asymptomatic, or sufficiently asymptomatic for a significant period of time
before the work injury occurred, that the condition did not require treatment and did not
impair the ability of the employee to perform his or her assigned duties.
In considering the evidence introduced during the Expedited Hearing in view of
the statutory and case authority discussed above, the Court fmds Mr. Stallion testified
credibly and without rebuttal that he hurt his back on February 25 while lifting the
tailgate of TruGreen's truck. 9 Furthermore, TruGreen came forward with no evidence
rebutting Mr. Stallion's history of having not required medical treatment for back pain
prior to the occurrence of the February 25 work injury.
The Wage Statement completed by TruGreen indicated Mr. Stallion earned
weekly wages ranging from $400 to over $1,000 per week for forty-three of the fifty-two
weeks preceding the alleged date of injury in performance of the strenuous work
TruGreen assigned him. (Ex. 1.) The Court considers the Wage Statement documents
that, prior to the February 25 work injury, Mr. Stallion was not impaired by back pain or
any other reason from performing his work at TruGreen.
In view of the above-described evidence, the Court fmds Mr. Stallion will likely
prevail at trial in showing that he injured his back while lifting the tailgate ofTruGreen's
work truck on February 25. Furthermore, the Court finds Mr. Stallion will likely prevail
at trial that the degenerative changes in his spine were not sufficiently symptomatic to
impair his capacity to perform physically strenuous labor prior to the occurrence of his
work injury.
Having determined that Mr. Stallion carried his burden of proving he sustained an
injurious incident at TruGreen on February 25 that caused back-related pain and
9
The Court notes that TruGreen's First Report of Injury (Ex. 2) and the histories recorded by Parkridge East
Hospital, Physician's Care and Dr. Jolley (Ex. 6 at 1; Ex. 8 at 2; Ex. 10 at 2) all generally corroborate the
mechanism of injury to which Mr. Stallion testified.
7
weakness that impaired his ability to work, the Court must next determine whether the
expert medical evidence introduced during the Expedited Hearing established that his
injury Mr. Stallion arose primarily out of and in the course and scope of employment.
Again, the Court decides this issue under section 50-6-102(14)(A), which focuses on
whether the work-related aggravating incident, and not the preexisting condition that was
aggravated, is work-related.
Dr. Jolley diagnosed Mr. Stallion with low back pain caused by a "[s]prain" and
"[m]ild L3-4, L4-5 degenerative disc disease." (Ex. 10 at 3.) His records indicate that
the only history of injury he considered was Mr. Stallion's report that he did not suffer
from back pain or right-leg weakness until he injured his back on February 25 while
lifting the tailgate to TruGreen's work truck. Id. at 2. In response to an inquiry as to
whether Mr. Stallion's complaints were "caused by his work injury by more than 51% as
opposed to any other contributing factors or health conditions," Dr. Jolley opined, "the
ddd is not; yes, to the sprain component." Id. In response to an inquiry whether Mr.
Stallion's need for treatment related to his degenerative condition or his work injury, Dr.
Jolley assessed sixty percent of the need for treatment to the work injury. Id.
In view of the above evidence, the Court finds that, at trial, Mr. Stallion will likely
prevail in establishing that he suffered a compensable injury to his lumbar spine while
lifting the tailgate of TruGreen's work truck on February 25. In support of this finding,
the Court relies on the finding Mr. Stallion did not require treatment for back pain prior
to February 25 and, more importantly, any symptoms he may have experienced in his
back did not impair his ability to perform the strenuous work TruGreen assigned him
during the year preceding the date of injury. The Court recognizes that, from an
anatomical standpoint, Dr. Jolley opined the work injury did not cause the degenerative
disc disease in Mr. Stallion's lumbar spine. However, Dr. Jolley also opined that Mr.
Stallion's work injury did cause a lumbar sprain that accounted for more than fifty
percent of his need for treatment of his spine when compared with the preexisting
degenerative changes. Based on the above, the Court finds that, at this time, Mr.
Stallion's work injury is compensable.
II. Medical Benefits
A. Parkridge East Hospital Bills
Mr. Stallion testified he told his supervisor at TruGreen on February 29 he had
sustained a February 25 work injury and the supervisor told him to go for a drug test. Mr.
Stallion testified he chose to go to Parkridge East Medical Center to comply with the
supervisor's instructions.
The First Report of Injury completed by TruGreen indicated that Mr. Stallion gave
notice of his injury on February 29 and the Parkridge East records indicate Mr. Stallion
8
presented for emergent treatment there on the same date. (T.R. 2; T.R. 6 at 1.) The
Parkridge East treatment records indicated Mr. Stallion reported a work injury, but
neither the treatment nor billing records establish that Mr. Stallion underwent a drug test
at Parkridge East. /d. at 1, 8; Ex. 9 at 1-2.
On the basis of the above evidence, the Court fmds that, at trial, Mr. Stallion will
not likely prevail in establishing that TruGreen authorized his treatment at Parkridge
East. Accordingly, the Court denies Mr. Stallion's request that TruGreen pay the
Parkridge East bills.
B. Ongoing Treatment in North Carolina
TruGreen contends Mr. Stallion failed to establish his entitlement to ongomg
medical care because Dr. Jolley indicated in response to a written causation inquiry sent
him after he released Mr. Stallion from his care that "Mr. Stallion does not need any
further treatment for his back sprain injury. If any further medical treatment for Mr.
Stallion's back is needed, this treatment would be for the degenerative disc disease which
is not work related." (Ex. 12 at 1.)
The Court fails to find merit in TruGreen's argument that it is no longer
responsible to provide authorized care of Mr. Stallion's work injury because Dr. Jolley
said Mr. Stallion no longer needs treatment for the back sprain component of his injury.
The Miller, Sanker and White opinions cited above held the employer was liable for the
entirety of the treatment necessitated by the work-related aggravations of the preexisting
treatments in those claims. In this claim, the evidence established that Mr. Stallion's
preexisting spinal condition was sufficiently asymptomatic that he did not require
treatment for it and it did not impair him from working at TruGreen for at least a year
prior to the date of injury. Since his work injury occurred, Mr. Stallion has endured
continuous back-related symptoms. He has undergone treatment for those symptoms
and, due to those symptoms, the physicians authorized to treat him under workers'
compensation placed restrictions on his work activities that led to the loss of his job at
TruGreen.
The report Dr. Jolley generated following his last visit with Mr. Stallion recorded
that Mr. Stallion reported intense back-related symptoms on that date. Nothing in the
report indicated that Mr. Stallion's symptoms on that date differed from those symptoms
he had reported throughout the course of his injury. Dr. Jolley did not note a difference
in the nature or origin of the pain Mr. Stallion reported on the date of his last visit that
would indicate Dr. Jolley's assessment that Mr. Jolley's back sprain had resolved resulted
in a corresponding improvement in Mr. Stallion's back pain. In view pfthe above facts,
the Court finds that Mr. Stallion will likely prevail at trial in establishing that the
symptoms for which he seeks ongoing medical benefits relate to his work injury at
TruGreen. Accordingly, the Court orders that TruGreen provide him a panel of
9
orthopedic surgeons or neurosurgeons in his locality in North Carolina from which he can
select an authorized physician for ongoing care. 10
III. Temporary Partial Disability Benefits
Mr. Stallion seeks temporary partial disability benefits for the time he missed from
work due to his injury. The Court finds TruGreen must pay those benefits.
In Jones v. Crencor Leasing and Sales, No. 2015-01-0332, 2015 TN Wrk. Comp.
Bd. LEXIS 48, at *7-8 (Tenn. Workers' Comp. App. Bd. Dec. 11, 2015), the Workers'
Compensation Appeals Board held, "[a]n 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." The Appeals Board in
Jones further held that an employee may qualify for temporary partial disability benefits
if the employer cannot accommodate the restrictions placed on the employee's activities
due to the work injury or provide the restricted worker with earnings that equal or exceed
the pre-injury average weekly wage during the period of temporary partial disability. !d.
at *7-8.
Tennessee Code Annotated section 50-6-207(2)(B) (2015) defmes how the
compensation rate for temporary partial disability benefits is calculated. Per the above
provision, the compensation rate paid for temporary partial disability benefits is "sixty-
six and two-thirds percent (66 2/3%) of the difference between the average weekly wage
of the worker at the time of the injury and the wage the worker is able to earn in the
worker's partially disabled condition." !d.
The evidence established that Mr. Stallion sustained a compensable injury and the
providers treating him at Physician's Care placed him under restrictions due to his
compensable injury from March 1 until May 23. While the May 30 Physician's Care
note-the one referring Mr. Stallion for orthopedic care--did not address restrictions, the
Court finds Dr. Jolley's placement of a lifting restriction at Mr. Stallion's initial visit
indicated Mr. Stallion was still impaired during the interim between the last visit at
Physician's Care and the first visit with Dr. Jolley. Accordingly, the Court finds that, at
trial, Mr. Stallion will likely prevail in establishing that Mr. Stallion's work mJury
restricted his activities from March 1 until August 9. 11
10
In his August 1 note, Dr. Jolley stated that Mr. Stallion "will followup with workman' compensation doctor in
North Carolina." (Ex. 10 at 9.) He gave Mr. Stallion a note indicating he should seek out a fellowship-trained spine
surgeon to consider fusion surgery. (Ex. 17.) The Court considers the above to constitute a referral pursuant to
Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii) (2016).
11
The Court terminates Mr. Stallion's period of temporary partial disability benefits on August 9 because Dr. Jolley
established August 9 as the date of maximum medical improvement. Tennessee Code Annotated section 50-6-
207(2)(C) (2016) provides that an employee may not receive temporary partial disability benefits after the date he or
10
Mr. Stallion testified without rebuttal that he missed time from work between
March 1 and August 9 due to the pain from his work injury and because the medicine
prescribed for his work injury made him lethargic. He further testified that he has not
worked anywhere since TruGreen placed him on leave of absence. In view of the above
facts and because Mr. Stallion was restricted due to his work injury, the Court finds that,
at trial, Mr. Stallion will likely prevail in establishing his entitlement to temporary partial
disability benefits from March 1 and August 9. 12
The Wage Statement filed by TruGreen documents that Mr. Stallion's average
weekly wage during the fifty-two weeks preceding the date of injury was $573.32. (Ex.
1.) The payroll records documenting the wages Mr. Stallion earned at TruGreen after the
date of injury indicate Mr. Stallion earned less than his average weekly wage for most of
the weeks he worked until TruGreen placed him on leave of absence. By the Court's
calculation, Mr. Stallion is entitled to the following amounts of temporary partial
disability for the following time periods, totaling $4,567.54:
WeekEnding Amount Paid TPDDue
March 5, 2016 $174.00 $266.22
March 12,2016 $0 $382.22
March 19,2016 $198.00 $250.22
March 26, 2016 $258.00 $210.22
April 2, 20 16 $274.56 $199.18
April9, 2016 $536.64 $24.46
April16, 2016 $287.04 $190.86
Apri123, 2016 $564.72 $5.74
May 7, 2016 $555.36 $11.98
May 28,2016 $446.16 $84.78
June 4, 2016 $542.88 $20.30
June 11, 2016 $0 $382.22
June 18, 2016 $499.20 $49.42
June 25, 2016 $24.96 $365.58
July 2, 2016 $0 $382.22
July 9, 2016 $499.45 $49.24
July 16, 2016 $0 $382.22
July 23, 2016 $0 $382.22
July 30, 2016 $0 $382.22
August 6, 20 16 $0 $382.22
she attains maximum medical improvement.
12
Mr. Stallion's claim he is entitled to temporary partial disability benefits after August 9 is without merit because
Dr. Jolley placed him at maximum medical improvement on that date.
11
August 9, 2016 $0 $163.80
IT IS, THEREFORE, ORDERED as follows:
1. TruGreen and/or its carrier shall promptly proffer Mr. Stallion a panel of
orthopedic surgeons or neurosurgeons in Mr. Stallion's locality in North Carolina
from which Mr. Stallion shall select a physician to provide ongoing care of his
compensable injury. TruGreen and/or its carrier shall promptly schedule Mr.
Stallion an appointment for treatment with the selected physician.
2. TruGreen and/or its carrier shall pay Mr. Stallion $4,567.54 in past-due temporary
disability benefits.
3. Mr. Stallion's claim for temporary partial disability benefits after August 9, 2016,
is denied.
4. Mr. Stallion's claim for payment of the bills he incurred at Parkridge East Medical
Center is denied.
5. This matter is set for a telephonic Status Hearing on March 15, 2017, at 10:00
a.m. Eastern Time.
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)
(2016). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau by email to
WCCompliance.Pr g,ram@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 by email at WCCompliance.Program@tn.go or by telephone at
(615) 253-1471 or (615) 532-1309.
ENTERED this the 13th day of December, 2016.
Judge Thomas Wyatt
Court of Workers' Compensation Claims
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Status Hearing:
A Status Hearing has been set with Judge Thomas Wyatt, Court of Workers'
Compensation Claims. You must call toll-free at 855-747-1721 or 615-741-3061 to
participate in the Status 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 to Appeal:
Tennessee Law allows any party who disagrees with this 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 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
lndigency 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
lndigency 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
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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.
APPENDIX
Exhibits:
1. Wage Statement;
2. First Report of Injury;
3. Agreement Between Employer/Employee Choice of Physician Form;
4. Payroll records;
5. Affidavit of Samuel Stallion;
6. Medical records ofParkridge East Hospital;
7. Medical records of Tennessee Imaging and Vein Center;
8. Medical records of Physician's Care, P. C.;
9. Medical bills;
lO.Medical records of Southeastern Spine/Dr. Jay Jolley;
11. Final Medical Report of Dr. Jay Jolley;
12. Opinion Letter of Dr. Jay Jolley; .
13. Utilization Review documentation-Benchmark Physical Therapy;
14. Peer Review documentation-Benchmark Physical Therapy;
15. June 14, 2016 letter from Attorney Charles Poss to Samuel Stallion;
16.Documentation of restrictions imposed by Dr. Jay Jolley;
17. Handwritten note from Dr. Jay Jolley to Samuel Stallion;
18. Medical Examiner's Certificate regarding qualification to drive a commercial
vehicle (sustained objection-relevance);
19. Off-Work slip from Parkridge East Hospital;
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20. Paycheck stubs; and
21. TruGreen human resources records (sustained objection-hearsay).
Technical record: 13
1. Petition for Benefit Determination;
2. Dispute Certification Notice;
3. Request for Expedited Hearing;
4. Notice of Expedited Hearing;
5. Employee's Position Statement; and
6. Employer Trial Brief.
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 13th day
of December, 2016.
Name Via Email Service sent to:
Samuel Stallion, Self- X sstallion@live. com
Represented Litigant
Charles Poss, X charlie.goss@leitncrfirm.com
Attorney
um, Clerk of Court
orkers' Compensation Claims
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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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