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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

JAMES FORIEST,

 Employee,

)

) Docket No. 2017-06-0413

)

v. )

UNITED PARCEL SERVICE, INC.,

 Employer,

)

)

)

State File No. 92945-2016 

Judge Joshua D. Baker

And,

LIBERTY MUTUAL INSURANCE 

COMPANY,

 Carrier. 

)

)

)

)

)

COMPENSATION HEARING ORDER GRANTING BENEFITS

The Court convened a bifurcated compensation hearing on February 14, 2018, to 

adjudicate all issues except permanent disability and permanent medical benefits. The 

Court bifurcated this hearing at Mr. Foriest’s request. UPS did not oppose bifurcation. 

Mr. Foriest’s private health insurance carrier denied coverage for surgery related 

to this injury, and Mr. Foriest’s physician cannot determine permanent impairment presurgery. Thus, the present focus is whether Mr. Foriest’s injury arose primarily out of 

and in the course and scope of his employment and, if the injury arose primarily out of 

his employment, the benefits to which he is presently entitled. For the reasons below, the 

Court holds Mr. Foriest suffered an injury that arose primarily out of the course and 

scope of his employment with UPS. The Court holds he is entitled to temporary total 

disability benefits, medical benefits, and the cost of medical care provided to date. The 

Court reserves the issues of permanent disability and permanent medical benefits. 
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History of Claim

On October 11, 2016, Mr. Foriest, a UPS delivery-driver, completed roughly sixty 

stops of his dedicated route before parking his truck in an empty lot to take a break. His

supervisor, Terry Holder, accompanied him on his route that day to evaluate Mr. Foriest’s 

work. During the break, Mr. Foriest injured his right knee. 

Mr. Foriest and Mr. Holder both testified that Mr. Foriest’s right knee popped as 

he walked during his break. Beyond this agreement, their testimony on how the injury 

occurred differed significantly. Mr. Foriest said he hopped down from the rear of the 

truck, but Mr. Holder recalled that Mr. Foriest exited from the passenger side, which has 

steps. Mr. Foriest described his knee popped “almost immediately” after he exited the 

truck, while Mr. Holder recalled it popped after they were parked for ten to fifteen 

minutes. 

Because both men previously had total knee replacements, Mr. Holder suggested 

the popping was innocuous and could improve with stretching, as his replaced knee had 

popped that morning, too. But “the third, maybe fourth, time” it popped, Mr. Holder 

testified, “I saw something protrude or push the skin out . . . that’s what really kind of 

blew me away.” 

The following day, Dr. William Shell, the authorized treating physician, examined 

Mr. Foriest, concluded he had dislocated his kneecap and took him off work.

1 He

referred him to his partner, Dr. Allen Anderson. 

Dr. Anderson also believed Mr. Foriest had a dislocated kneecap. He concluded 

that the dislocation constituted a “new injury,” unrelated to the previous total-knee 

replacement. He performed surgery to reconstruct the ligament around the patella, and 

Mr. Foriest underwent physical therapy. Dr. Anderson wrote that Mr. Foriest had “done 

really well [with his knee replacement] until this happened. And now he’s basically 

incapacitated. Consequently, this is a new injury that is work-related.” 

UPS denied Mr. Foriest’s claim, asserting Mr. Foriest was simply walking,

unaffected by any hazard of his employment, when his injury occurred. Following an 

expedited hearing, this Court agreed and found Mr. Foriest failed to prove he suffered an 

acute injury that arose primarily out of his employment. The Court, however, stated that 

its decision did “not foreclose him from proving he suffered a gradual injury.” 

Meanwhile, Mr. Foriest continued with physical therapy and also continued to 

have knee pain and swelling. During physical therapy, Mr. Foriest suffered “an incident 

of giving way [of the knee] with an audible pop after which he had difficulty walking or 

 

1 Dr. Shell performed Mr. Foriest’s previous total knee replacement in 2009.
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bending his knee.” After this physical therapy incident, Dr. Anderson reexamined Mr. 

Foriest’s knee and determined it contained a “loose body.” Dr. Anderson performed an

arthroscopy and discovered a piece of “polyethylene.” Following the arthroscopy, Dr. 

Anderson referred Mr. Foriest back to Dr. Shell. 

In his deposition, Dr. Shell described the piece of polyethylene as a broken “post” 

from the total knee replacement.2 Even though the condition is uncommon, Dr. Shell 

described the condition as a “recognized complication” of a total knee replacement. He 

described the problem as a “failure” of the total knee replacement and recommended 

surgical correction. Mr. Foriest’s private medical insurance refused to pay for the 

procedure. 

Dr. Shell testified he and Dr. Anderson “missed” the broken post when they first 

examined Mr. Foriest, and that Dr. Anderson likely could not have seen the broken post 

during the first surgery. Further, he had “no question that [Mr. Foriest’s] current 

symptoms and the previous two operations by Dr. Anderson were due to his total knee 

failure.” He pointed to a “low signal intensity body within the suprapatellar pouch” on an 

MRI taken twelve days after the alleged injury and said, “In retrospect, that was the 

broken off piece of polyethylene.”3 Dr. Shell testified unequivocally that the 

polyethylene became fatigued “over a long period of time” because of Mr. Foriest’s

physically demanding job, until it broke on October 11, 2016. He specifically identified 

Mr. Foriest’s employment as “the major contributing factor” to the mechanism failure, 

explaining that activity “is a significant issue in component longevity.” 

Mr. Foriest and Mr. Holder, UPS employees for twenty-six and thirty-two years 

respectively, described the physical demands on a delivery-driver. Mr. Foriest estimated 

that he walks between nine and thirteen miles every day on every type surface, walks up 

and down hills and steps, and delivers packages to one hundred and fifty stops, climbing 

in or out of his truck roughly three hundred times per day during an eleven-hour shift. 

While Mr. Foriest testified the weight limit for lifting is 150 pounds, Mr. Holder clarified 

that “anything over 70 pounds, you’re supposed to have either help or use your [safety] 

methods,” such as sliding, rolling or walking an item to a dolly. 

Mr. Foriest’s wage statement indicated his average weekly wage was $1,140.78, 

resulting in a $760.55 compensation rate. Dr. Shell stated Mr. Foriest was unable to 

work from October 12, 2016, to the present because of the injury and said, “I don’t see 

how he can perform his job until this is corrected.” Mr. Foriest has not undergone 

surgery to correct the knee-replacement failure. 

 

2 Dr. Anderson passed away before giving his deposition in this case. 

3 Dr. Shell also explained that the post did not break during Mr. Foriest’s physical therapy. Instead, the 

“sudden pain” Mr. Foriest experienced during physical therapy happened when the post “caught up under 

his patella, or moved around enough that it got in his joint[.]”
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The Court permitted Mr. Foriest two weeks from the compensation hearing to file 

medical bills. He filed those with a summary on February 27, indicating $67,282.36 was 

billed to his private health insurance carrier and that his out-of-pocket expenses totaled 

$1,171.77. UPS raised no opposition to the bills or summary filed. 

Legal Principles and Analysis

At a compensation hearing, Mr. Foriest must establish by a preponderance of the 

evidence that he is entitled to the requested benefits. Willis v. All Staff, 2015 TN Wrk. 

Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-

239(c)(6) (2017). The employee in a workers’ compensation claim has the burden of 

proof on all essential elements of the claim. Scott v. Integrity Staffing Solutions, 2015 TN 

Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). 

To prevail, Mr. Foriest must prove he suffered a compensable injury. Under 

Workers’ Compensation Law, an “injury” means an injury by accident . . . arising 

primarily out of and in the course and scope of employment that causes death, 

disablement, or the need for medical treatment. An injury “arises primarily out of and in 

the course and scope of employment only if it has been shown by a preponderance of the 

evidence that the employment contributed more than fifty percent (50%) in causing the 

injury, considering all causes.” An injury causes the need for medical treatment if shown 

to a reasonable degree of medical certainty that the injury contributed more than fifty 

percent (50%) in causing the disablement or need for medical treatment. See Tenn. Code 

Ann. § 50-6-102(14). An employee need not prove a single, sudden event caused his 

injury if the injury occurred from a set of incidents over an identifiable period of time. 

Smiley v. Four Seasons Coach Leasing, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 28 

at *22 (July 15, 2016). 

Mr. Foriest argued that Dr. Shell’s opinion provides expert medical evidence that 

his injury was primarily caused by “the pounding” his knee endured working for UPS 

during the seven years after his total knee replacement. He asserted that repeated work 

trauma to his right knee culminated in a disability on October 11, when the post from his 

total knee replacement broke. He relied on Dr. Shell’s opinion that he has been totally 

disabled from work since his injury, that the injury required two surgeries by Dr. 

Anderson, and that the injury resulted in the present need for surgery. UPS argued this 

was an acute injury unrelated to the total knee replacement. UPS asserted that the post 

broke during physical therapy but provided no medical proof to support this assertion. 

The Court finds Mr. Foriest suffered a gradual injury during the seven years he 

worked for UPS after his total knee replacement. Mr. Foriest and Mr. Holder provided 

testimony showing work at UPS involves extensive bending, walking and lifting. Dr. 

Shell testified this work activity was “the major contributing factor” that caused the knee 
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replacement to fail, resulting in Mr. Foriest’s inability to work and need for additional 

treatment. While UPS argued this was an acute event unrelated to cumulative trauma, it 

did not offer countervailing expert medical evidence to rebut Dr. Shell’s opinion. 

Without this, the Court is constrained to rule in favor of Mr. Foriest as judges are not 

well-suited to make an independent medical determination without expert medical 

testimony supporting the determination. Scott at *8. Similarly, parties cannot rely solely 

on their own medical interpretations to successfully support their arguments. Lurz v. 

Int’lernational Paper Co., 2018 TN Wrk Comp. App. Bd. LEXIS 8, at *17 (Feb. 14, 

2018). The Court therefore holds that Mr. Foriest suffered a gradual, compensable injury 

to his knee on October 11, 2016. 

Having established compensability, Mr. Foriest payment seeks temporary total 

disability, temporary medical benefits, and payment of past medical expenses at this 

portion of the bifurcated compensation hearing.4The Court holds UPS must provide the 

requested relief. 

Tennessee law requires an employer to provide “free of charge to the employee 

such medical and surgical treatment . . . made reasonably necessary by accident as 

defined in this chapter[.]” Tenn. Code Ann. § 50-6-204(a)(l)(A). In providing the 

treatment, the Workers’ Compensation Law requires an employer to “designate a group 

of three (3) or more independent reputable physicians . . . from which the injured 

employee shall select one (1) to be the treating physician.” Id. at 50-6-204(a)(3)(A)(i). If 

an employer fails to provide a panel, it risks having to pay for all reasonable and 

necessary medical expenses incurred by an employee for treatment with an unauthorized 

physician, and also risks having to provide continuing care with the unauthorized 

physician. See Young v. Young Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16-

17 (May 25, 2016). 

Here, UPS denied Mr. Foriest’s claim from the outset, and he sought treatment 

from Drs. Shell and Anderson utilizing his private insurance until it declined to pay for 

further treatment. His private insurance paid $67,282.36 for treatment and Mr. Foriest 

paid $1,171.77 out of pocket Dr. Shell testified that the treatment provided was 

reasonable and necessary. The Court holds that UPS shall be responsible for these

medical expenses. Additionally, the Court appoints Dr. Shell as the authorized treating 

 

4 While the Court acknowledges prior decisions from the Appeals’ Board hazarding against bifurcation, 

the Court agrees with the parties that bifurcation was the best option here as Mr. Foriest cannot procure 

the surgery necessary to heal his knee from either workers’ compensation or his private insurance. 

Furthermore, the Court understands that Mr. Foriest cannot simply pay for the surgery out of pocket. The 

parties did not want to try the case under the lesser standard burden proof at an expedited hearing 

(likelihood of success on the merits), only to turn around and try it again under the higher burden of proof 

at a compensation hearing (preponderance of the evidence). Additionally, had Mr. Foriest not prevailed 

in proving compensability, the case would be over absent an appeal, and Mr. Foriest could then secure 

care under his private medical insurance after the finding of non-compensability. 
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physician for future care. 

Concerning temporary disability benefits, Dr. Shell said Mr. Foriest’s 

compensable October 11, 2016 injury totally disabled him from the day of the injury until 

the present. The Court, therefore, holds that Mr. Foriest proved his claim for temporary 

total disability benefits. See Jones v. Crencor Leasing, 2015 TN Wrk. Comp. App. Bd. 

LEXIS 48, at *7 (Dec. 11, 2015) (To be eligible for temporary disability benefits an 

employee must prove he became disabled from working due to a compensable injury, the 

causal connection between his injury and his inability to work, and the duration of his 

disability.). UPS shall pay Mr. Foriest accrued temporary disability benefits from 

October 12, 2016, through the date of this order in a lump sum—a period of seventy-four 

weeks and two days. UPS shall continue making payments to Mr. Foriest on a biweekly 

basis at his compensation rate of $760.55 per week until Dr. Shell releases him to return 

to work. 

IT IS, THEREFORE, ORDERED as follows:

1. UPS shall pay Mr. Foriest the cost of his out-of-pocket expenses, $1,171.77, for 

medical treatment he received for his work injury. UPS shall also consult with 

Mr. Foriest’s private health insurance carrier to arrange reimbursement to the 

carrier for the treatment provided to Mr. Foriest. 

2. UPS shall provide ongoing medical treatment for Mr. Foriest with Dr. Shell 

serving as the authorized treating physician. Either Dr. Shell or Mr. Foriest shall 

submit the bills to Liberty Mutual for payment. 

3. Mr. Foriest is entitled to temporary total disability benefits from October 12, 2016, 

through the date of this order, in the amount of $56,504.00, and going forward at a 

compensation rate of $760.55 per week until he reaches maximum medical 

improvement or is no longer entitled to temporary disability benefits under 

workers’ compensation law. 

4. The issues of permanent disability benefits and permanent medical benefits are 

reserved; therefore, this is not a final order addressing all contested issues in this 

claim.

ENTERED MARCH 15, 2018.

_____________________________________

Judge Joshua Davis Baker

Court of Workers’ Compensation Claims
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APPENDIX

Exhibits:

1. Medical Records Filed February 1, 2018

2. 2009 Workers’ Compensation Settlement Documents

3. First Report of Injury

4. Wage Statement

5. Mr. Foriest’s Recorded Statement

6. Terry Holder’s Accident Summary Statement

7. Dr. William Shell’s Deposition Transcript

8. Expedited Hearing Transcript

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice filed 

3. Expedited Hearing Order

4. Motion for Bifurcated Hearing

5. Order Setting Compensation Hearing

6. Joint Compensation Hearing Statement

7. Notice of Filing Medical Bills

8. Amended Notice of Filing Medical Bills
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CERTIFICATE OF SERVICE

I certify that a true and correct copy of this Order was sent to the following 

recipients by the following methods of service on March ___, 2018.

Name Certified 

Mail

Via

Fax

Via 

Email

Service sent to:

Stephan Karr,

Employee’s Attorney

X steve@flexerlaw.com

David Hooper,

Employer’s Attorney

X dhooper@hooperzinn.com

_____________________________________

Penny Shrum, Clerk

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov

15th