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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., ) 

Carrier,

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 Hearing. 

The central issue is whether De’breshia Larry’s right-knee injury is idiopathic or workrelated. For the reasons below, the Court holds the injury is work-related and she is 

entitled to medical benefits.

History of Claim

Ms. Larry claimed she injured her 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 rightknee 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 agreed on very little about the events of August 21. Both agreed that 

Ms. Larry’s right knee dislocated while she was behind the counter at work, but they

FILED

Apr 18, 2019

11:51 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
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vehemently contested the details surrounding her injury. 

Ms. Larry testified that when she turned to help a customer, part of her right foot 

landed on the edge of a safety mat and part landed on the floor. She felt a pop in her right 

knee and almost fell. Her co-worker, Damien Coleman, caught her and laid her on the 

counter. Another 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 twist 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 caused her condition. She sent Ms. Larry the Notice of 

Denial on August 23. 

After learning that Cash America denied her claim, Ms. Larry treated 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 had never done this 

before, but she mentioned 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 might 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 additional dislocations since that time. Dr. Ennis initially recommended 

conservative treatment but ultimately referred Ms. Larry to Dr. Robert Bobo to consider 

surgery. After examining Ms. Larry’s knee and reviewing 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. 
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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.”

On October 19, Ms. Larry filed a Petition for Benefit Determination (PBD) 

seeking medical and temporary disability benefits as well as attorneys’ fees. At the time 

of the Expedited Hearing, 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 pointed 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 affidavit. Cash America also referenced portions of Ms. Larry’s medical records 

where providers mentioned previous problems with her right knee as a child. Further, it 

pointed 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 preexisting 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, the SIF may file a written 

motion for relief. The present motion is denied.

Findings of Fact and Conclusions of Law

Standard Applied

At an Expedited Hearing, Ms. Larry need 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 she 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 Ms. 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).
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Idiopathic Injury

Turning to the central issue of this case, the Court 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 id. at *10. Cause in this 

context means “the accident originated in the hazards to which the employee was 

exposed as a result of performing his job duties,” and the 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 turned 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 similarly in her 

affidavit. In her PBD, Ms. Larry did not mention the safety mat, but she described

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 regarding 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 penalized simply for being a poor historian.” Orman v. Williams 

Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn. 1991). While Ms. Larry might not be a good 

historian, she made 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 of 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.
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Arising Primarily Out of Employment

The Court further holds that Ms. Larry is likely to succeed at a hearing on the 

merits in proving her condition arose primarily out of her employment. 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.” Tenn. Code Ann. § 50-6-

102(14)(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 *10-11 (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 to 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 medical providers that she had problems with her knee as a child. 

Moreover, Dr. Hood specifically stated that Ms. Larry had no preexisting patellofemoral 

dysplasia and stated there was “no reason to believe this was a congenital problem.”

Based on this evidence, 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). Cash 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 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 (May 25, 2016).

While Ms. Larry provided no proof of the expenses incurred for her unauthorized 

treatment, the Court designates Dr. Hood as Ms. Larry’s authorized treating physician for 

ongoing treatment. Ms. Larry specifically asked 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 might 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. 
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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 

disability. 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 compensation 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 *28-29 (Jan. 

30, 2018). The 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.

IT 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.
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3. This matter is set for a Scheduling Hearing on June 3, 2019, at 11:00 a.m.

central 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 business 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 Workers’ Compensation Compliance Unit by email at 

WCCompliance.Program@tn.gov.

ENTERED April 18, 2019.

_____________________________________

JUDGE DEANA C. SEYMOUR

Court of Workers’ Compensation Claims

APPENDIX

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 Expedited 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 identification only)

7f. Affidavit of Schuyler Crowe

8. Employee’s Witness List
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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

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing, with attached 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. Employee’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 these recipients by the following 

methods of service on April 18, 2019.

Name Certified 

Mail

Fax Regular 

mail

Email Sent to:

Andrew Wener, 

Employee’s attorney

X awener@wenerlawfirm.com

Paul Nicks, 

Employer’s attorney

X pnicks@travelers.com

Timothy Kellum,

SIF Attorney

X timothy.kellum@tn.gov

_____________________________________

Penny Shrum, Court Clerk

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov
Expedited 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 file 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 Bureau 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 fullycompleted 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 Appeals 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 must 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 11082 
9. 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 (describe: 

10. Assets: 

Automobile $ ____ _ 

Checking/Savings Acct. $ ____ _ 

House 

) 

Other 

11. My debts are: 

Amount Owed 

$ _ ___ _ 

$ ____ _ 

To Whom 

(FMV) - ---------

(FMV) ----------

Describe: _____ _____ _ 

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