1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT MEMPHIS

DE’BRESHIA LARRY , ) Employee, ) Docket No. 2018

- 08

- 0945

v. ) CASH AMERICA INT’L , ) Employer, ) And ) State File No. 63568

- 2017 TRAVELERS INDEMNITY CO. , ) C arrier , and SUBSEQUENT INJURY AND VOCATIONAL RECOVERY FUND. ) ) ) ) Judge Deana Seymour

EXPEDITED HEARING ORDER

This case came before the Court on March 25, 2019, for an Expedited Hear ing. The central issue i s whether De’breshia Larry ’s right

- knee injury is idiopathic or work

related

. For the reasons below, t he Court holds the injury is work

- related and she is entitled to medical benefits.

History of Claim

M s

. Larry claim ed s he injured h er right knee at work on August 21 , 2017. She immediately notified Cash America International of her injury and went to the emergency

room

. The emergency room records indicated that Ms. Larry presented with sudden right

knee pain that started just before her arrival. She was diagnosed and treated for a lateral dislocation of her patella, which the note mentioned she experienced several times as a child.

The parties agree d on very little about the events of August 21

. B oth agree d that Ms. Larry’s right knee dislocated while she was behind the counter at work

, but the y 

### FILED Apr 18, 2019 11:51 AM(CT)
TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS2 vehemently contested the details surrounding her injury

.
Ms. Larry testified that when she turn ed to help a customer

, part of her right foot landed on the edge of a safety mat and part landed on the floor

. S he felt a pop in her right knee and almost fell. Her co

- worker, Damien Coleman

, caught her and laid her on the
counter. A nother co

- worker drove her to the emergency room.

Cash America relied on the live testimony of Aquavia Means and the affidavits of Mr. Coleman and Schuyler Crowe. Ms. Means testified that she witnessed Ms. Larry’s injury and prepared an incident report . According to Ms. Means, Ms. Larry did not turn
or tw ist before her knee dislocated. Instead, she took two steps and fell. Ms. Means testified that Ms. Larry was not near the safety mat when she fell , and she denied that any customers were in the store

. Mr. Coleman’s affidavit testimony supported Ms. Means ’ version of events. He also testified that Ms. Larry never told him she injured her knee while twisting or turning

. Ms. Crowe testified by affidavit that she notified Ms. Larry her claim was denied because no workplace hazard cause d her condition. She sent Ms. Larry the Notice of Denial on August 23

. After learning that Cash America denied her claim, Ms. Larry treat ed on her own with Dr. Nahum Beard and Dr. Anthony Mascioli at Campbell Clinic

. Ms. Larry advised Dr. Beard that she dislocated her knee when she shifted her weight to her right leg and her kneecap popped out to the side. She indicated that her knee ha d never done this before, but she mention ed having “ mechanical symptoms ” as a child. She told Dr. Mascioli she was standing at work, twisted, and her knee gave out. She denied any previous history of knee instability.

Dr. Beard diagnosed Ms. Larry with a patellar dislocation and possible underlying dysplasia that m ight have predisposed her to the dislocation

. He placed her in a brace

, ordered an MRI

, and referred her to Dr. Mascioli to discuss further options. Dr. Mascioli planned to treat Ms. Larry conservatively. However, Ms. Larry decided to change and began treating with Dr. Richard Ennis.

Ms. Larry advised Dr. Ennis that she injured her right knee when she turned suddenly and felt a pop in her knee. According to Dr. Ennis’ office note

, Ms. Larry had experienced two addition al dislocations since that time. Dr. Ennis initially recommended conservative treatment but ultimately referred Ms. L arry to Dr. Robert Bobo to consider
surg ery

. A fter examin ing Ms. Larry’s knee and review ing her MRI report, Dr. Bobo noted the findings were “not extremely strong for surgical treatment

. ” He injected her knee, referred her to physical therapy, and prescribed medication.3 When she did not improve, Dr. Bobo referred her to Dr. Michael Hood. In an April 6, 2018 office note, Dr. Hood observed “ gross instability with lateral patella instability ” in the right knee despite “ exhaustive conservative management ” over an eight

- month period. He recommended a medial patellofemoral ligament reconstruction and indicated that her work incident was 100% responsible for her current condition. He specifically indicated that Ms. Larry had no preexisting patellofemoral dysplasia and there was “no reason to believe this was a congenital problem.”

O n October 19

, Ms. Larry filed a Petition for Benefit Determination (PBD) seeking medical and temporary disability be nefits as well as attorney s’ fees. At the time of the Expedited H earing, Ms. Larry continued to have problems with her right knee and insisted she needed the recommended surgery. She also continued to work for Cash America and received a promotion to assistant store manager. She testified that she had no hospitalizations, health conditions, or restrictions before her work injury.

Cash America argued that Ms. Larry changed her version of events several times during the course of her claim. It poin ted to the histories Ms. Larry gave to her medical providers, the description of her injury in her PBD , and her testimony about the incident in her a ffidavit. Cash America also referenced portions of Ms. Larry’s medical records where providers mentioned pr evious problems with her right knee as a child. Further, it point ed out that none of Ms. Larry’s providers took her off work during her treatment

. The Subsequent Injury and Vocational Recovery Fund (SIF) moved to be dismissed as Ms. Larry continued to work and did not suffer from a permanent and pre

existing disabling condition before the alleged injury. The Court took the motion under advisement. The Court finds this motion premature. An Expedited Hearing is interlocutory in nature and not for final decisions. However, t he SIF may file a written motion for relief. The present motion is denied.

Findings of F act and Conclusions of Law

Standard Applied

At an E xpedited H earing, M s

. Larry ne ed not prove every element of her claim by a preponderance of the evidence but must come forward with sufficient evidence from which the trial court can determine that s he is likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing , 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7

- 8, 9 (Mar. 27, 2015). This lesser evidentiary standard does not relieve M s

. Larry of the burden to produce evidence of an injury by accident that arose primarily out of and in the course and scope of employment, but “allows some relief to be granted if that evidence does not rise to the level of a ‘ preponderance of the evidence.’” Buchanan v. Carlex Glass Co., 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Sept. 29, 2015).4 Idiopathic Injury

Turning to the central issue of this case, the Cour t must first determine whether Ms. Larry sustained an idiopathic right

- knee injury. An idiopathic injury is one that “ has an unexplained origin or cause, and generally does not arise out of the employment

. ” McCaffery v. Cardinal Logistics

, 2015 TN Wrk. Comp. App. Bd. LEXIS 50, at *9 (Dec. 10, 2015). If an employment hazard causes or exacerbates an injury that occurs due to an idiopathic condition, however, the injury is compensable. See i d

. a t *10. Cause in this
context means “ the accident o riginated in the hazards to which the employee was exposed as a result of performing his job duties ,” and t he Court must focus on the causal link between the employment and the accident or injury not the employment and the idiopathic episode. Id . at * 10

- 11

. Ms. Larry testified that when she turn ed to help a customer, her right foot planted on the edge of the safety mat so that part of her foot landed on the mat and part landed on the floor. She felt a pop in her right knee and almost fell. She testified s imilarly in her affidavit. In her PBD, Ms. Larry did not mention the safety mat, but she describe d twisting and hurting her knee at work. She provided a similar history to Dr. Mascioli and told Dr. Ennis that she “turned suddenly” and felt a pop in her knee.

The Court recognizes that credibility is an integral issue in this case and appreciates the concerns Cash America raised regard ing Ms. Larry’s version of events. The Court acknowledges that she gave somewhat inconsistent histories to the doctors. She also had trouble recalling who witnessed her injury and where she received
emergency care

. However, “ [e] ven if minor and insignificant details vary, an injured worker should not be penalize d simply for being a poor historian.” Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn. 1991). While Ms. Larry m ight not be a good historian, she ma d e a credible witness. She testified calmly and confidently and was reasonable and forthcoming. See Kelly v. Kelly, 445 S.W.3d 685, 694

- 5 (Tenn. 2014).

The Court also recognizes that witnesses to the incident do not recall Ms. Larry turning or twisting when the injury occurred. However, in light of Ms. Larry’s testimony and the photographs introduced o f the counter area and safety mat, the Court finds her version of events more convincing. The photographs show that the safety mat spans the entire length of the counter, so if she was standing behind the counter

, as everyone has indicated, she would be on or near the safety mat.

The irony of finding that a “safety mat” posed a hazard does not escape the Court, but in this case, the evidence leads to this very conclusion. Therefore, based on the foregoing, the Court holds that Ms. Larry is likely to succeed at a hearing on the merits in proving she did not sustain an idiopathic injury.5 Arising Primarily Out of Employment

T he Court further holds that Ms. Larry is likely to succeed at a hearing on the merits in proving her cond ition arose primarily out of her employment

. A n 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.” Tenn. Code Ann. § 50

- 6

- 102(1 4 )(B). Medical evidence is generally required to establish a causal relationship, except in the most “ obvious, simple [or] routine cases.” Berdnik v. Fairfield Glade Cmty. Club , 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at *10

- 1 1 (May 18, 2017).

Ms. Larry introduced Dr. Hood’s April 27, 2018 opinion indicating that her work incident was 100% responsible for her current medical condition. Cash America did not introduce any medical proof t o contradict this opinion. Instead, it pointed to medical records that mentioned prior problems with her knee during childhood and noted possible underlying dysplasia that predisposed her to a patellar dislocation. However, Ms. Larry denied telling her med ical providers that she had problems with her knee as a child. Moreover, Dr. Hood specifically st ated that Ms. Larry had no preexisting patellofemoral dysplasia and stated there was “no reason to believe this was a congenital problem.” Based on th is eviden ce, the Court holds that Ms. Larry is likely to prevail at a hearing on the merits on this issue

. Medical Benefits

Since Ms. Larry showed a likelihood of success in proving that her injury arose primarily out of her employment, Cash America is required to provide reasonable and necessary medical treatment for her work injury. See Tenn . Code Ann. § 50

- 6

- 204(a)(1)(A). Ca sh America denied Ms. Larry’s claim two days after her injury and never provided medical benefits or a panel of physicians

. If an employer fails to provide a panel, it risks having to pay for all reasonable and necessary medical expenses incurred by an emp loyee 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 (May 25, 2016)

. While Ms. Larry provided no proof o f the expenses incurred for her unauthorized treatment, t he Court designates Dr. Hood as Ms. Larry’s authorized treating physician for ongoing treatment. Ms. Larry specifically ask ed the Court to order the surgery recommended by Dr. Hood. However, Dr. Hood made his surgical recommendation over
a year ago , and his treatment plan m ight have changed

. Therefore, the Court orders Cash America to provide Ms. Larry with all reasonable and necessary medical treatment recommended by Dr. Hood for her work injury.6 Temporary Disability Benefits

To receive temporary total disability benefits, Ms. Larry must show (1) total disability from working as the result of a compensable injury; (2) a causal connection between the injury and the inability to work; and (3) the duration of the period of disabil ity. Shepherd v. Haren Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 15, at *13 (Mar. 30, 2016).

The medical records do not show that Ms. Larry’s medical providers took her off work or placed her on restricted duty as a result of her knee injury. Ms. Larry admitted that her doctors never took her off work. Therefore

, she is not entitled to temporary disability benefits at this time.

Attorneys’ Fees

Ms. Larry’s counsel requests attorneys’ fees under Tennessee Code Annotated section 50

- 6

- 226(d)(1)( B ). This statute does not set a time for attorneys’ fee awards, but the Appeals Board stated:

Given the uncertainties inherent in litigation, the limited issues typically addressed at expedited hearings, the fact that discovery and medical proof often are incomplete at an interlocutory stage of a case, the standard of proof that applies at expedited hearings, and the fact that a trial judge’s determinations at an interlocutory hearing are subject to change at any time prior to the entry of a final compensa tion hearing order, a decision to award attorneys’ fees and expenses at an interlocutory stage of a case should be made only in extremely limited circumstances.

Thompson v. Comcast Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *2 8

- 29 (Jan. 30, 2018). Th e Court holds this case does not fall within “extremely limited circumstances” to justify an award of attorneys’ fees at this interlocutory stage. Thus, the Court denies this request at this time.

I T IS, THEREFORE, ORDERED as follows:

1. Cash America shall provide Ms. Larry with reasonable and necessary medical treatment under Tennessee Code Annotated section 50

- 6

- 204. The Court designates Dr. Michael Hood as Ms. Larry’s authorized treating physician for ongoing treatment

.

2. No temporary disability benefits are due at this time.7 3. This matter is set for a Scheduling He aring on June 3 , 201 9 , at 11:00 a.m.

c entral time

. You must call toll

- free at 866

- 943

- 0014 to participate in the Hearing. Failure to call may result in a determination of the issues without your participation.

4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with this Order must occur no later than seven busines s days from the date of entry of this Order as required by Tennessee Code Annotated section 50

- 6

- 239(d)(3)

. 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. For questions regarding compliance, please contact the Worke rs’ Compensation Compliance Unit by email at WCCompliance.Program@tn.gov.

ENTERED April 18 , 201 9

.

_____________________________________ J UDGE DEANA C. SEYMOUR C ourt of Workers’ Compensation Claims

A PPENDIX

Exhibits : 1. Medical records with Table of Contents (Collective) 2. Petition for Benefit Determination 3. Dispute Certification Notice 4. Request for Expedited Hearing, with Affidavit of De’Breshia Larry in Support of Request for Expedited Hearing 5. Subsequent Injury and Vocational Recovery Fund’s Expedit ed Hearing Brief 6. Employer’s Witness List 7. Employer’s Exhibit List 7a. Photographs (Collective) 7b. Work

- Related Injury/Illness Report 7c. Notice of Denial of Claim for Compensation 7d. Affidavit of Damien Coleman 7e. Signed statement of Marcus Taylor (For i dentification only) 7f. Affidavit of Schuyler Crowe 8. Employee’s Witness List8 9. Employee’s Exhibit List , with attachments 10. Employer/Carrier’s Expedited Hearing Pre

- Trial Brief, with attachments 11. Photograph of safety mat 12. Affidavit of Attorney Andrew L. Wener

T echnical Record : 1. Petition for Benefit Determination 2. Dispute Certification Notice 3. Request for Expedited Hearing , with attac hed Affidavit of De’Breshia Larry in Support of Request for Expedited Hearing 4. Subsequent Injury and Vocational Recovery Fund’s Expedited Hearing Brief 5. Employer ’s Witness List 6. Employer’s Exhibit List, with attachments 7. Employee ’s Motion in Limine 8. Employee’s Witness List 9. Employe e ’s Exhibit List, with attachments 10. Employer/Carrier’s Expedited Hearing Pre

- Trial Brief, with attachments 11. Employee’s Second Motion in Limine 12. Employer/Carrier’s Response to Employee’s Motions in Limine

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent to the se recipients by the following methods of service on April 18 , 201 9

.

Name Certified Mail Fax Regular mail Email Sent to :

Andrew Wener

, Employee’s attorney X awener@wener law firm .com

Paul Nicks

, Employer’s attorney X pnicks@travelers .co m

Timothy Kellum, SIF Attorney X timothy.kellum@tn.gov

_____________________________________ Penny Shrum, Court Clerk Court of Workers’ Compensation Claims WC.CourtClerk@tn.govExpedited Hearing Order Right to Appeal :

If you disagree with this Expedited Hearing Order, you may appeal to the Workers’ Compensation Appeals Board. To appeal an expedited hearing order , you must:

1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and f ile the form with the Clerk of the Court of Workers’ Compensation Claims within seven business days of the date the expedited hearing order was filed . When filing the Notice of Appeal, you must serve a copy upon all parties

.

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar days after filing of the Notice of Appeal. Payments can be made in

- person at any B ureau office or by U.S. mail, hand

- delivery, or other delivery service. In the alternative, you may file an Affidavit of Indigency (form available on the Bureau’s website or any Bureau office) seeking a waiver of the fee. You must file the fully

complete d Affidavit of Indigency within ten calendar days of filing the Notice of Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will result in dismissal of the appeal.

3. You bear the responsibility of ensuring a complete record on appeal. You may request from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of the proceedings is to be filed, a licensed court reporter must prepare the transcript and file it with the court clerk within ten business days of the filing the Notice of Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both parties within ten business days of the filing of the Notice of Appeal. The statement of the evidence must convey a complete and accurate account of the hearing. The Workers’ Compensation Judge must approve the statement before the record is submitted to the Appeals Board. If the Appe als Board is called upon to review testimony or other proof concerning factual matters, the absence of a transcript or statement of the evidence can be a significant obstacle to meaningful appellate review.

4. If you wish to file a position statement, you mu st file it with the court clerk within ten business days after the deadline to file a transcript or statement of the evidence. The party opposing the appeal may file a response with the court clerk within ten business days after you file your position statement. All position statements 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.

For self

- represented litigants: Help from an Ombudsman is available at 800

- 332

- 2667.ll



# .

Tennessee Bureau of Workers' Compensation 220 French Landing Drive, 1-B Nashville, TN 37243-1002 800-332-2667

AFFIDAVIT OF INDIGENCY 

# ..
I

I

, , having been duly sworn according to law, make oath that because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be waived. The following facts support my poverty.

1

. Full Name :

___________ _ 2

. Address :-------------

3

. Telephone Number :--------- 4. Date of Birth :
-----------

5

. Names and Ages of All Dependents :

----------------- Relationship:

-------------

----------------- Relationship:

-------------

--------------- - - Relationship :------------
-

----------------- Relationship :-------------

6

. I am employed by: ------------------------------,- My employer's address is:

-------------------------
My employer's phone number is :-----------------------

7

. My present monthly household income, after federal income and social security taxes are deducted

, is :
$

_______ __

8. I receive or expect to receive money from the following sources:

AFDC $ per month beginning

SSI $ per month beginning

Retirement $ per month beginning Disability $ per month beginning Unemployment $ per month beginning

Worker ' s Camp

. $ per month beginning
Other $ per month beginning

LB-1108 (REV 11/15) RDA 110829

. My expenses are : ' ; !• '
Rent/House Payment $ per month Medical/Dental $ per month

Groceries $ per month Telephone $ per month Electricity $ per month School Supplies $ per month

Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month Transportation $ per month Child Support $ per month
Car $ per month

Other $ per month (descr i be :

10

. Assets:

Automobile $

___ _ _ Checking/Savings Acct. $

____ _ House

) Other

11. My debts are:

Amount Owed $

_ ___ _ $

____ _

To Whom (FMV)

- ----- ----

(FMV)

--- ---- --- Desc ri b e :

____ _ _____ _

I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete and that I am financially unable to pay the costs of this appeal.

APPELLANT

Sworn and subscribed before me, a notary public, this

___ dayof

_____________ ,20

___ _

NOTARY PUBLIC

My Commission Expires :

_ _ ____ _ _

LB-1108 (REV 11/15) RDA 11082