TENNESSEE BUREAU
OF WORKERS' COMPENSATION WORKERS' COMPENSATION APPEALS BOARD David Young v. Young Electric Co., et al. Appeal from the Court of Workers' Compensation Claims Joshua Davis Baker, Judge

) Docket No. 2015-06-0860 ) ) State File No. 39751-2015 ) ) ) ) ) ) ) Reversed and Remanded-Filed September

14, 2016 FILED September

14, 2016 TENNESSEE WORKERS

' COMPENSATION APPEALS BOARD Time: 2:50 P.M. This
is the second interlocutory appeal

in this case arising out of an injury the employee alleges occurred when he lost his balance and fell while attempting

to lift

a shopping cart loaded with construction materials. Following

the first expedited hearing,
the trial court awarded medical benefits,
but denied temporary disability benefits, finding the employee did not establish

he was likely
to prevail

at a hearing
on the merits. We affirmed
the award of medical benefits and the denial of temporary disability benefits, concluding

the employee
did not present sufficient medical proof
to establish

he was unable

to work
as a result of his injury. The employee subsequently
filed

a motion

to compel temporary disability benefits supported

by the authorized physician's responses

to three written questions presented

by the employee. Based on the physician's responses,

the trial court awarded temporary disability benefits
for the two periods

in question, and the employer has appealed.
We reverse the trial court's award
of temporary disability benefits and remand the case for further proceedings

as may be necessary. Judge David

F. Hensley delivered
the opinion
of the Appeals Board,

in which Judge Marshall

L. Davidson,

III, and Judge Timothy
W. Conner joined. Stephen Morton, Nashville, Tennessee,

for the employer-appellant,
Young Electric Co. Michael Fisher, Nashville, Tennessee,

for the employee-appellee,
David Young 1Factual and Procedural Background In a May 25, 2016 opinion,
we affirmed
the trial court's award of medical benefits and its denial
of temporary disability benefits following

an expedited hearing.

As pertinent

to this appeal, we stated: David Young ("Employee")

is

a forty-year-old resident

of Humphreys County, Tennessee.

On May 11, 2015, he worked

as an apprentice electrician

for Young Electric Company,
Inc.

1 ("Employer"), which had contracted

to perform electrical work for

a Kroger store
in Nashville undergoing renovations.

On the date of the accident, employees were using Kroger shopping carts
to transport construction materials

to the "Conex"
for overnight storage.

2 Employee alleged that during the course
of performing

this work-related activity,

he lifted

a shopping cart containing forty
to sixty pounds
of construction materials
off the ground and attempted to move

it from the entrance

to the Conex.
As he did so, he lost his footing, fell back, and the cart fell on top of him, striking
his head.

A coworker, Mr. William Harvey, claimed

in an affidavit

to have witnessed

the injury. Employee testified that he did not immediately experience enough pain to concern him, so he completed

his shift without notifying Employer of the incident. Employee stated, however, that early the next morning,

at 2:00 or 3:00 a.m., he awoke

in "excruciating pain." Later that day, he decided

to visit his primary care physician,

Dr. Desmond White.
On his way to Dr. White's office, Employee alleged that he called his supervisor, John Boatfield,
and told him "exactly what happened;
that

I had been injured

at work." Employee claimed that Mr. Boatfield told him to bring

a doctor's note when he returned

to work. Mr. Boatfield testified

on behalf of Employer

at the expedited hearing and stated
he did not recall this conversation.

He further observed that his daily log did not contain any indication that an accident had been reported

on the date of the alleged phone call, as would have been proper protocol. Over the next several days, Employee visited Dr. White's office on May
15 and May 20. Medical records from the May
12 and May
15 visits contain
no evidence that Employee reported suffering

a work-related injury. Records from the May
12 visit reveal that Employee
was experiencing severe pain
in his right shoulder which radiated down his right arm. The report noted "Onset: May 11, 2015," but also stated "Context: there

is no 1 The record indicates there

is no familial relationship between Employee
and Employer. 2 A Conex

is a trailer approximately
forty feet in length.

It has double doors,
no wheels, and sits about eight inches above the ground.

2injury."Dr.WhitemadesimilarobservationsonMay15.Dr.DanielShrock,achiropractor,treatedEmployeeonMay18,2015.Onthe"NewPatientApplicationandInformation"form,someonecrossedoutthesectionsentitled"Insurance"and"AccidentInformation."Employeewroteontheformthatthereasonforthevisitwasa"pinchednerve"withsymptomsfirstappearingonMay12,2015.Employeereturnedtowork,butonMay19heallegedlyaggravatedhisconditionwhileawire.EmployeedidnotreturntoworkforEmployerafterMay19.OnMay20,atapproximately6:00a.m.,EmployeecalledMr.Boatfieldtoinformhimthathewouldbeoffworkafewdaysduetohisinjury.Mr.BoatfieldclaimedthatthisphonecallonMay20wasthefirstnoticehereceivedofEmployee'sMay11injury.AftertheMay20phonecall,Mr.BoatfieldfilledoutaFirstReportofWorkInjury.AMay20medicalreportfromDr.WhitereflectsachangeinthedescriptionofEmployee'scondition.Specifically,Employeedescribedtheinjuryas"liftingacartatwork[,]thenextdayshoulderstartedhurting,thenreaggervated[sic]ityesterdaybypullingonwire."EmployerdidnotprovideapanelofphysiciansfollowingthetelephonecallbetweenEmployeeandMr.BoatfieldonMay20,2015.Asaresult,Employeecontinuedtoseekoutmedicaltreatmentonhisown.AfterseeingDr.Whiteinmid-May,hesawDr.BrookAdams,whoperformedanMRIandanEMG,whichrevealedspondylosis,stenosis,adiscprotrusionattheC6-7levelofthecervicalspine,andradiculopathiesattheC7-8level.OnJune9,EmployeeconsultedDr.GregoryLanford,aneurosurgeon,whoopinedthatEmployee'swork-relatedaccidentcausedaninjurytohiscervicalspineandrecommendedsurgery.Eventually,Employerprovidedapanelofphysicians,andonJune27,2015,EmployeechoseDr.N.K.Singhashisauthorizedphysician.However,Employerrefusedtoscheduleanappointmentanddeniedtheclaimonthegroundsthattheinconsistenciesinthemedicalrecordscalledintoquestionwhethertheallegedaccidentoccurredasreported.EmployeefiledaPetitionforBenefitDeterminationonOctober26,2015...seekingtemporarydisabilityandmedicalbenefits.Afterthehearing,thetrialcourtissuedanExpeditedHearingOrdergrantingmedicalbenefitsbutdenyingtemporarydisabilitybenefits.3EmployeetestifiedhereceivednoincomefromMay19,2015,toFebruary2,2016,whenhebeganworkingforMillerElectric.3

# 4



# Our May 25, 2016 opinion affirming the trial court’ s denial of temporary disability benefits included the following: Employee has not presented sufficient medical proof to establish that he was unable to work as a result of his injury, havin g come forward with no restrictions issued by a physician addressing his a bility to work. When asked at the expedited hearing whether Employer wou ld have been able to accommodate any restrictions, Mr. Boatfield [Employ ee’s supervisor] indicated that he was not sure what type of work co uld have been provided in light of the nature of the employment. However, Employee provided no actual restrictions for Mr. Boatfield to review and presented no proof to establish that any physician assigned work restrict ions or opined Employee was unable to work during the relevant period of ti me. Thereafter, Employee sent Dr. Lanford, the authori zed treating physician, a letter requesting his opinions regarding Employee’s abilit y to work and whether he had any restrictions. The letter posed three questions, th e first being “[a]s a result of this injury, has [Employee] been unable to work at full duty[],” to which Dr. Lanford replied “yes.” The second question inquired “for how long has he b een unable to work or work at limited duty,” and Dr. Lanford replied “since injur y of 5/11/15.” The last question asked “[w]hat work restrictions should [Employee] observe as a result of this injury,” and Dr. Lanford responded, “[n]o overhead work.” Employee filed a Motion to Compel Temporary Benefi ts on July 12, 2016, asking the court to award temporary disability benefits fo r two separate time periods. 4 

# The first period began on May 20, 2015, the date immediately following Employee’s last day of work for Employer, and ended on February 2, 2016, t he date Employee began working for Miller Electric. The second period began on Ma y 2, 2016, the date Employee was laid off from work by Miller Electric, and continue d to the “present or until he is returned to work, whichever comes sooner.” Dr. Lanford’s re sponses to the June 8, 2016 letter were filed with Employee’s motion in support of his request for temporary disability benefits. On July 27, 2016, the trial court heard arguments f rom counsel addressing Employee’s request for temporary disability benefit s. However, no witnesses were called to testify and no additional records were admitted into evidence beyond Dr. Lanford’s written responses to the three questions addressed above. The trial court issued an order

4 

# A workers’ compensation judge “may, at the judge’s discretion, hear disputes over issues provided in the dispute certification notice concerning the pro vision of temporary disability or medical benefits on an expedited basis . . . .” Tenn. Code Ann. § 50-6-23 9(d)(1) (2015). Regardless of how a motion is styl ed, we will analyze a request for such benefits filed p rior to a compensation hearing in accordance with t he standards and procedure set forth in Tennessee Code Annotated section 50-6-239(d) and any applicable regulations of the Bureau of Workers’ Compensation.onAugust3,2016,whichstatedthatEmployee"providedanotefromDr.LanfordstatinghelackedtheabilitytoworkfollowinghisinjuryonMay11,2015,"andthatEmployee'smotion"alsoincludedanoticeofrestrictionsthatprohibited[Employee]fromperformingoverheadwork."ConcludingthatEmployee"possessedsomecapacitytoperformlimitedwork,"thetrialcourtdeterminedthatEmployee's"recoverylaysintemporarypartialdisabilitybenefits."Thetrialcourtnotedthat,"despiteDr.Lanford'sopinionthat[Employee]couldnotworkafterMay11,2015,[Employee]admittedheworkedfor[Employer]onMay20,2015,andthenreturnedtoworkforanotheremployeronFebruary2,2016,"andcontinuedworkinguntilthisemployerlaidhimoffonMay2,2016.Thetrialcourtultimatelyconcludedthat,"[b]asedonthesefacts,theCourtfinds[Employee]carriedhisburdenofprovingentitlementtotemporarypartialdisabilitybenefitsfortheperiodfromMay20,2015,throughFebruary1,2016...andfromMay3,2016,throughthedateofthisorder."ThetrialcourtorderedEmployertopay$18,532.30inaccruedtemporarypartialdisabilitybenefitsandto"continuepaymentsuntil[Employee]isnolongereligibleforthosebenefits."Employerhasappealed.StandardofReviewThestandardweapplyinreviewingatrialcourt'sdecisionisstatutorilymandatedandlimitedinscope.Specifically,"[t]hereshallbeapresumptionthatthefindingsandconclusionsoftheworkers'compensationjudgearecorrect,unlessthepreponderanceoftheevidenceisotherwise."Tenn.CodeAnn.§50-6-239(c)(7)(2015).Thetrialcourt'sdecisionmustbeupheldunlesstherightsofaparty"havebeenprejudicedbecausefindings,inferences,conclusions,ordecisionsofaworkers'compensationjudge:(A)Violateconstitutionalorstatutoryprovisions;(B)Exceedthestatutoryauthorityoftheworkers'compensationjudge;(C)Donotcomplywithlawfulprocedure;(D)Arearbitrary,capricious,characterizedbyabuseofdiscretion,orclearlyanunwarrantedexerciseofdiscretion;or(E)Arenotsupportedbyevidencethatisbothsubstantialandmaterialinthelightoftheentirerecord."Tenn.CodeAnn.§50-6-217(a)(3)(2015).Likeothercourtsapplyingthestandardsembodiedinsection50-6-217(a)(3),wewillnotdisturbthedecisionofthetrialcourtabsentthelimitedcircumstancesidentifiedinthestatute.AnalysisEmployerpresentstwoissuesforreview,eachquestioningwhetherthetrialcourterredinawardingbenefitsforthetwoperiodsofcontestedtemporarydisability.Forthe5reasons that follow, we find that the evidence presented

to date preponderates against the trial court's determination

that Employee will likely prevail

in establishing

an entitlement to temporary disability benefits

at a hearing
on the merits. Initially,
we reiterate that at an expedited hearing,

an employee need not prove every element

of his or her claim by
a preponderance

of the evidence,
but must come forward with sufficient evidence from which the trial court can determine
that the employee

is likely
to prevail

at a hearing
on the merits, consistent with Tennessee Code Annotated section 50-6-239(d)(l) (2014). McCord

v. Advantage Human Resourcing,

No. 2014-06-0063,
2015 TN Wrk. Comp. App. Bd. LEXIS

6, at *9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). This lesser evidentiary standard "does not relieve
an employee of the burden
of producing evidence

of an injury by accident that arose primarily
out of and in the course and scope of employment

at an expedited hearing, but allows some relief
to be granted

if that evidence does not rise to the level of
a 'preponderance

of the evidence."' Buchanan

v. Car/ex Glass Co., No. 2015-01-0012,
2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 {Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). To receive temporary total disability benefits,

an employee must prove (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. Simpson

v . Satterfield,
564 S.W.2d 953, 955 {Tenn. 1978). As the Tennessee Supreme Court's Special Workers' Compensation Appeals Panel observed, "[t]emporary partial disability refers

to the time,
if any, during which the injured employee

is able to resume some gainful employment

but has not reached maximum recovery." Williams

v. Saturn Corp., No. M2004-01215-WC-R3-CV,

2005 Tenn. LEXIS 1032,

at *6 {Tenn. Workers' Comp. Panel Nov. 15, 2005); see Tenn. Code Ann.

§ 50-6-207(2) (2015). Temporary restrictions assigned

by physicians during

an injured worker's medical treatment

do not establish

an entitlement

to temporary disability benefits

if the employee is able to work without loss of income.
See Long

v. Mid-Tenn. Ford Truck Sales, 160 S.W.3d 504, 511 (Tenn. 2005); Vinson

v. Firestone Tire and Rubber Co., 655 S.W.2d 931, 933 {Tenn. 1983). In this case, there

is no medical proof

in the record concerning Employee's ability to work during the time periods

in question other than Dr. Lanford's responses

to Employee's June

8, 2016 letter. Employee

did not present

to Employer
any medical record

or note indicating

he had restrictions assigned

by
a physician, depriving Employer of any opportunity

to make

a meaningful decision

to accommodate whatever restrictions may have been imposed
for the time periods

in question.

In the initial expedited hearing, the trial court noted that "[i]t was not clear from [the supervisor's] testimony, however, that [the supervisor] knew of any workplace restrictions imposed

on [Employee]."

In the first appeal, we determined
that "Employee [had] not presented sufficient medical proof to establish that he was unable

to work
as a result of his injury, having come forward with no restrictions issued
by

a physician addressing

his ability

to work." We noted that 6"Employee provided

no actual restrictions for [the supervisor]

to review and presented

no proof
to establish that any physician assigned work restrictions

or opined Employee
was unable

to work during the relevant period
of time." In the order presently under review, the trial court again noted that "[i]t was not clear from [the supervisor's] testimony, however, that [the supervisor] knew of any workplace restrictions imposed

on [Employee]." Nonetheless,

the trial court noted "[i]n any event,

it was clear from testimony that [Employer]

did not return [Employee]

to work." Based
on these determinations

and Dr. Lanford's responses

to the three questions presented

to him, the trial court awarded benefits
for the disputed periods
of temporary disability. The question before
us is whether
the preponderance

of the evidence supports
the trial court's determination

that Employee will likely prevail

at a hearing

on the merits

in establishing entitlement

to temporary disability benefits
for the two periods

in question. More specifically,

the issue

is whether
Dr. Lanford's responses

to the three questions posed by Employee, considered with the proof adduced

at the initial expedited hearing,

is sufficient

to support the trial court's determination
that,
at trial, Employee would likely establish

he was unable

to work during the periods

in question

as a result of his injury. In response

to the first question,
Dr. Lanford opined Employee
had "been unable to work

at full duty." Responding

to the second question asking "for how long has he been unable

to work or work
at limited duty," (emphasis supplied),

he wrote, "since [the] injury of 5/11115."

It is unclear from this question and response whether
Dr. Lanford's opinion was that Employee
was unable

to perform any work since his May 11, 2015 injury,
or whether
his opinion was that Employee could perform limited duty work from the date of his injury. His response

to the final question, which asked what work restrictions "should [Employee] observe

as
a result of this injury," was "no overhead work." Stating that Dr. Lanford "prohibited [Employee] from performing overhead work," the trial court concluded
that "because [Employee] possessed some capacity

to perform work, his recovery lays in temporary partial disability benefits."

Dr. Lanford's opinions were not provided

to Employer until June

8, 2016,
or thereafter,
and
it is unclear from those opinions during what time period Dr. Lanford felt Employee should "observe" an overhead work restriction.

5 In our opinion,

it is significant
that Employee testified unequivocally

at the initial expedited hearing that he was able to resume gainful employment subsequent

to his May 11, 2015 injury. Employee testified

he began working with another Employer

on February

2, 2016 "about
74 hours

a week," performing work similar

to the work he 5 The third question presented

to Dr. Lanford was posed

in the present tense, indicating that Dr. Lanford was to opine about Employee's current restrictions

as of the date of his response. The question
did not ask Dr. Lanford

to opine about restrictions Employee may have had prior
to the date of the June
8, 2016 inquiry.

7performed with Employer. Although Employee testified

he performed

the work with "a little bit of difficulty,"

he nonetheless
was able to work

a significant number

of hours per week until he was laid off and was earning

a higher wage while doing so. The record

is silent
as to why Employee was laid off in May 2016,
or whether
his lay-off was related

to his work injury with Employer

or any physical restrictions. Although
this work was between
the two periods
of contested disability, there

is no proof that work restrictions were
in place prior
to Employee's work with the subsequent employer. Moreover,

as previously noted, Employer
was not provided
any record
of work restrictions during either period
of contested disability,
and
it was never given the opportunity

to consider accommodating whatever work restrictions might have existed.

In short, the evidence presented

to date shows that Employee
has, in fact, worked

at full duty for several months since his injury, contrary

to the opinion expressed

by Dr. Lanford that Employee has been unable

to work
at full duty since the date of his injury. Dr. Lanford's opinions are less than clear concerning whether Employee could work after his injury, whether Employee could perform limited

or restricted work after his injury, and at what point Employee
was to "observe" work restrictions. Considering

the limited medical evidence presented

to date and the testimony presented

at the initial expedited hearing,
we find the preponderance

of the evidence addressing

the disputed periods
of temporary disability

to be otherwise than found by the trial court. Conclusion For the above reasons,
we reverse the trial court's decision awarding temporary disability benefits and remanded

the case for such additional proceedings

as may be necessary

.

**----** Workers' Compensation Appeals Board 8

# TENNESSEE BUREAU OF WORKERS’ COMPENSATION WORKERS’ COMPENSAT ION APPEALS BOARD 

# David Young ) Docket No. 

# 2015-06-0860 ) 

# v. ) State File No. 

# 39751-2015 ) 

# Young Electric Co. , et al. )



# CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced case was sent to the following recipients by the following methods of service on this the 14th day of September, 2016.

Name Certified Mail First Class

Mail Via

Fax Fax Number Via

Email Email Address

Michael Fisher X 

# mfisher@ddzlaw.com Stephen Morton X 

# Stephen.morton@mgclaw.com Joshua David Baker , Judge X 

# Via Electronic Mail
Kenneth M. Switzer , Chief Judge X 

# Via Electronic Mail Penny Shrum, Clerk, Court of Workers’ Compensation Claims X 

# Penny.Patterson

- Shrum@tn.gov



# Matthew Salyer Clerk, Workers’ Compensation Appeals Board 220 French Landing Dr., Ste. 1-B Nashville, TN 37243 Telephone: 615 -253-1606 Electronic Mail: Matthew.Salyer@tn.gov