## FILED Feb 28, 2019 01:22 PM(ET) TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMSevaluation andtreatment. 1 Star Vending later provided a panel ofphysicians, and she selected Dr. Samuel Yoakum as her authorized treating physician. However, instead ofDr. Yoakum, Star Vending scheduled an appointment for herwithDr. RyanDabbs.2 During her initial visit with Dr. Dabbs, Ms. Darnell reported catching and locking in her left knee when she tried to walk and pain with weight-bearing after the fall. Dr. Dabbs reviewed an MRI and diagnosed a medial tibial plateau bone contusion and softtissue contusion ofthe left knee due to the fall at work. He placed her on light duty and prescribed aknee brace. Ms. Darnelltestifiedthat, atherfirst visit, she informedDr. Dabbs ofher lowback and hip pain but told that she had to pick the injury to be treated that day. She also testified that Star Vending offered to return her to work through a transition-to-work program at a Knoxville AreaRescue Ministries (KARM) store in Knoxville. She reported for work at KARM on August 15 and understood that she would be assigned to monitor the dressing room and assist customers. When she arrived, she was instead assigned to sort donations from a seated position with her leg propped up and to remove items from boxes on the floor. When she voiced concerns that the assignment exceeded her restrictions, she was sent home. Star Vending paid her two weeks of temporary disability benefits for August 15 through 29. During this time, Ms. Darnell continuedto treat with Dr. Dabbs and on August 20 reported worsening knee pain with full weight-bearing and light-duty activities. Dr. Dabbs restricted her to sitting only with her left leg and foot elevated and recommended "toe-touch"walking with crutches. StarVending offered to transition Ms. Darnell, a Knoxville resident, backto work within herrestrictions at a KARM store in Sevierville. She testified she did not reportto work at the Sevierville KARM store because she did not have transportation and the distance was too far. When she failed to report to work, Star Vending did not offer any further opportunities and stoppedhertemporary disabilitybenefits. However, Star Vending continued to provide treatment with Dr. Dabbs. Ms. Darnell continued to complain ofleft knee pain on September 10, so he referred her to physical therapy. He continued her use ofcrutches but lifted her restrictions to sitting

1 The parties did not introduce the Parkwest medical records relating to Ms. Darnell's treatment at Parkwest.

2 Neither party explained why Star Vending scheduled her treatment with Dr. Dabbs instead of Dr

. Yoakum. 2alternatingwith standing and no liftingwith her legs. On October 1, in addition to her left knee pain, Ms. Darnell reported left hip pain. Dr. Dabbs diagnosed left hip abductor tendonitis and bursitis, prescribed a steroid to reduce her inflammation, and recommended additional physical therapy. He continued her alternating sit/standrestriction with "sittingjobmainly." A few days later, Ms. Darnell started working for TSI, a temporary employment agency, and assigned to Reilly Foods as a teapacker. She testified she continues to work for TSI and works at least thirty-two hours perweek earning $10 perhour. She testified herjobrequires herto stand and packteaboxes atwaist level. After going to work for TSI, Ms. Darnell returned to Dr. Dabbs on November 13 and reported low back pain since her injury, which worsened as her left knee pain improved. He recommended that she see a spine specialist for her low back complaints but continued her anti-inflammatory medications. He further recommended stretching exercises and assigned liftingrestrictions. In response to the referral, Star Vending questioned Dr. Dabbs regarding the causal relationship ofMs. Darnell's low back pain to the work incident. Itprovided Dr. Dabbs with a peer-review report by Dr. Robert C. Greenberg, who reviewed Ms. Darnell's records and determined that her low back pain was "less than 50% or more related to the work injury of07/22/18." Itthen asked Dr. Dabbs whetherhis referral was more than 50% related to her work injury. He checked the option that stated, "The referral is 50% ormorerelatedto causes otherthan her allegedJuly 22, 2018 injury." Ms. Darnell returned to Dr. Dabbs on February 1, 2019, where he noted diagnoses ofleft knee contusion, left low back pain, and left hip pain. He purportedly placed Ms. Darnell at maximummedical improvement and assigned limited-dutyrestrictions.3 Findings ofFact and Conclusions ofLaw At an Expedited Hearing, Ms. Darnell must present sufficient evidence demonstrating that she is likely to prevail at a hearing on the merits. See McCord v. AdvantageHuman Res., 2015 TNWrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015). MedicalBenefits The Workers' Compensation Law requires an employer to provide an injured employee with medical treatment made reasonably necessary by the work injury. See

3 The parties introduced only the Worklink Physician's Report and not Dr. Dabbs' report from the February 1, 2019 visit. 3Tenn. Code Ann. § 50-6-204(a)(3)(A)(i) (2018). An injury causes the need for medical treatment only ifit has been shown to a reasonable degree ofmedical certainty that it contributedmore than fifty percentin causingthe need for medical treatment, considering all causes. "Shown to a reasonable degree of medical certainty" means that, in the opinion ofthe physician, it is more likely than not considering all causes, as opposed to speculation or possibility. Moreover, the opinion ofthe treating physician, selected from a panel of physicians, shall be presumed correct on the issue of causation but this presumption shall be rebuttable by a preponderance ofthe evidence. 

### See Tenn. Code Ann.§ 50-6-102(14)(C)-(E). Here, the Court finds the medical records do not support Ms. Darnell's allegation that she reported low back pain at her initial visit. The Court further finds the medical records do not substantiate her allegation that Dr. Dabbs told her at her first visitthat she had to pick the injury to be treated. Instead, the records noted she complained only of knee pain following the fall. Later, she developed hip pain, which Dr. Dabbs noted and treated. Then, almost four months after the injury, the records reflect for the first time her low backpain complaints. Ofimportance, the Court notes that she reported low back pain after shewentto work elsewhere in a standingposition outside herrestrictions. When asked whether the low back pain was related to the fall, Dr. Dabbs, the authorized treating physician, determined that Ms. Darnell's back complaints were fiftypercent or more likely caused by conditions other than the work injury. He agreed with Dr. Greenburg. The Court does not give Dr. Dabbs' opinion a presumption ofcorrectness because Ms. Darnell did not select him from a panel. However, she failed to offer any other medical opinion to counter Drs. Dabbs' and Greenburg's opinions that her low back complaints were not likely caused by the work injury. 

### See Berdnik v. Fairfield Glade Comm. Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at *16 (May 18, 2017) (A court cannot award benefits where undisputed medical evidence states that an injury did not ariseprimarily out ofthe employment). Therefore, the Courtholds that Ms. Darnell failed to come forward with sufficient evidence demonstrating she is likely to prevail at a hearing on the merits that her low backs complaints aroseprimarily out ofand in the course and scope ofher employment. 

### TemporaryPartialDisabilityBenefits Under the Workers' Compensation Law, an injured employee is entitled to temporary partial disability (TPD) benefits if restricted from working due to a work injury. 

### See Tenn. Code Ann. § 50-6-207(2)(A). In

### Lasserv. Waste Mgmt., Inc., 2018 TNWrk. Comp. App. Bd. LEXIS 20, at *7-8 4(May 24, 2018), the Workers' Compensation Appeals Board noted, "The statute does not specify the type or location ofwork orthe manner in which the partially disabled worker can earn wages." The Appeals Board further held, "Whether an employee is entitled to temporary partial disability in the face ofan offer ofmodified duty work depends on the reasonableness ofthe employer in attempting to return the employee to work and the reasonableness ofthe employee in failing to eitherreturn to work orremain at work." 

### Id. at *21.Here, Ms. Darnell refused Star Vending's offer oftransitional return-to-work at the Sevierville KARM store because she did not have transportation and the assignment was too far away. However, she did not testify that the distance was too great due to her work injury but rather personal transportation difficulties. The Court finds Star Vending's offer to return to work reasonable. Ms. Darnell's refusal ofthis offer related to transportation issues ratherthan herrestrictions. The Courtholds her refusal to accept this position unreasonable. Therefore, she failed to present sufficient evidence demonstrating she is likely to prevail at a hearing on the merits that she is entitled to additional TPD benefits. IT IS, THEREFORE, ORDERED that Ms. Darnell's claim for the requested benefits is denied atthis time. This matter is set for a Status Conference on June 3, 2019, at 1:30 p.m. Eastern Time. The parties must call 855-543-5041 to participate in the hearing. Failureto appear by telephone may result in a determination ofthe issues withouttheparty'sparticipation. ENTERED February28, 2019.

P**~MELA** B. JOHNSON,JUDGE CourtofWorkers' Compensation Claims APPENDIX TechnicalRecord: 1. Petition for BenefitDetermination 2. Dispute CertificationNotice 3. Request for ExpeditedHearing 4. Motions

- Motionto Dismiss 5. Notice ofExpeditedHearing 6. Employer'sNotice ofPiling- Medical Questionnaire

- Dr. Ryan Dabbs 7. Motions

- Employer's Withdrawal ofMotion to Dismiss 58. Employer'sNotice ofFiling

- Medical Records

- Dr. Ryan Dabbs/TOC 9. Employer's PrehearingBrief 10.Employer's Notice ofFiling- Witness List 11.Employer'sNotice ofFiling

- Medical Records 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 establishedby the evidence. Exhibits: 1. Affidavit

- LisaDarnell 2. FirstReportofWorkInjury 3. Table ofContents ofMedicalRecords • Dr. Ryan Dabbs, TennesseeOrthopedic Clinic • Medical Questionnaire Response ofDr. RyanDabbs • PeerReviewReportbyDr. Robert C. Greenberg 4. Panel ofPhysicians 5. TOC WorklinkReport, February 1, 2018 CERTIFICATE OF SERVICE I certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients by the following methods ofservice on February28, 2019.

Name Certified Fax Mail LisaDarnell, 

## x Self-Represented Employee MeredithB. Weaver, Employer's Attorney Email Service sentto: 4225 SkylineDrive Knoxville, TN37914 

## x meredith.weaver@petersonwhite.com

UM, Court Clerk WC.Coor Clerk@tn.gov

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