## FILED
June**23~**2017

1N COURT Of l\'ORKIR.S'CO:MPI.NS

..: U'ION CL

.illiS



### TENNESSEEBUREAU OFWORKERS' COMPENSATION INTHE COURTOFWORKERS' COMPENSATIONCLAIMS AT KNOXVILLE WESLEYL. SOLES, Employee, 

### v. KIRKLAND'S PEST CONTROL, Employer, and STARNETINSURANCE COMPANY, Carrier. ) DocketNo.: 2016-03-0991 ) ) 

### ) StateFile No.: 72908-2016 ) ) 

### ) JudgePamelaB. Johnson )



### EXPEDITEDHEARING ORDER DENYINGWORKERS' COMPENSATIONBENEFITS Time2:20Pll



### This matter came before the undersigned Workers' Compensation Judge on May 31, 2017, for an Expedited Hearing. The central legal issue is whether Wesley Soles demonstrated that he is likely to prevail at a hearing on the merits that his August 30, 2016 injury arose primarily out ofand in the course and scope ofhis employment with Kirkland's Pest Control. For the reasons set forth below, the Court holds Mr. Soles did not carry his burden ofproof. Thus, the Court denies his claim for temporary disability and medical benefits atthis time. HistoryofClaim Mr. Soles worked for Kirkland's as a pest control technician. His job duties required him to spray for bugs at residential and commercial properties. In performing hisjob duties, he carried a canister ofinsecticide weighing up to fifty pounds and often descended and ascended stairs to reach the properties. On or about August 26, Mr. Soles suffered a flare up ofgout in his left knee and left foot. During this time, he continued to work as scheduled on August 26 and August 29, but he wore a wrap on his knee to help with the gout pain. During this time, he also walked with a limp due to his gout pain

. On August 30, he reported to work without the wrap on his knee, as he was able to move more and his painhad improved

. 1During his workday on August 30, Mr. Soles provided pest control services to the cabins at Big Ridge State Park. While descending stairs at a cabin and carrying the canister ofinsecticide, he "heard apop" and "felta gush ofpain" in his left knee when he stepped from one step to the next. Mr. Soles denied that he stumbled, fell, slipped, or tripped and further denied thathis left knee gave way. He also denied that there were any obstacles or defects to the stairs. He further indicated that, as far as he knew, carryingthe canister of pesticide did not cause his injury, but he acknowledged that he is not a medical expert. He reported the work incident to D.R. Kirkland upon his return to the office.
Mr. Soles was scheduled to see his primary care provider at Mountain Hope Good Shepherd Clinic on September 1, to follow-up on unrelated medical conditions, including the gout in his left knee and left foot. During this visit, he told the attending provider, Barbara Z. Kwaasny, APN, ofthe work incident, and she rendered a diagnosis ofacute left knee pain. Ms. Kwaasny further recommended the use ofcrutches and a knee brace, and she placed Mr. Soles on restricted duty, including no use ofleft leg and sedentary work only. Mr. Soles returned to modifiedworkthe next day. Kirkland's then provided Mr. Soles with a panel ofphysicians, and he selected Rocky Top Medical Clinic. On September 7, Mr. Soles attended an authorized visit at Rocky Top Medical Clinic and saw Dr. Steven Johnson. Mr. Soles reported the work incident to Dr. Johnson, who diagnosed left knee pain and ordered physical therapy. Dr. Johnson further recommended workrestrictions. Atthis visit, Mr. Soles indicated he was required to pay $100 out-of-pocket because he did not have a claim number; he denied everbeingreimbursed for this expense. Through early September, Mr. Soles continued working modified duty; his last day worked was September 19. He also continuedto treat with his primary care provider at Mountain Hope on September 20 and September 29, and received a diagnosis ofright knee and leg pain with swelling following left knee pain and use of crutches. The attendingprovider instructedMr. Soles to seethe workers' compensationphysician.
Mr. Soles returned to Dr. Johnson, the authorized physician, on September 30, with continued complaints of left knee pain as well as swelling in the right leg. The medical report noted a comorbid disease ofgout in the left knee and foot. Dr. Johnson recommended continuedphysical therapy and placedMr. Soles offwork completely until he was evaluated and clearedby an orthopedic physician. Based upon the referral by Dr. Johnson, Mr. Soles saw Dr. Rick Parsons at Tennessee Orthopedic Clinic for an authorized orthopedic evaluation on October 6. Dr. Parsons evaluated Mr. Soles and noted an impression of "rule out left medial meniscal tear versus superficial deep venous thrombosis." Dr. Johnson recommended an MRI of the left knee and kept Mr. Soles off work. Mr. Soles attended the left knee MRI on 2October 8, which demonstrated a linear intrasubstance tear involving the medial portion ofthepatellartendon with underlying tendinopathy. Subsequently, Kirkland's carrier issued a Notice of Denial of Claim for Compensation on October 12 and again on October 24. Kirkland's based its denial claiming the defense ofidiopathic incident. Additionally, on October 21, Kirkland's sent correspondence to Mr. Soles instructing him to return to work immediately or submit his resignation ifunable to performthe duties he was hired to do.
Mr. Soles sought his own evaluation with orthopedic physician, Dr. Alan Whiton, on October 25. After Mr. Soles provided a history ofthe August 30 work incident and occasional episodes of gout, Dr. Whiton reviewed the MRI and performed a physical examination. Dr. Whiton diagnosed patellar tendon strain and recommended immediate commencement ofphysical therapy. Mr. Soles advised Dr. Whiton that he could not afford physical therapy, so Dr. Whiton did not write an order for physical therapy. Dr. Whiton instructed Mr. Soles to follow up with him ifKirkland's approved treatment or if he decided to pursue treatment on his own. For his evaluation with Dr. Whiton, Mr. Soles testifiedhepaid $200 out-of-pocket, for which he seeks payment. As to his work status, Mr. Soles testified he is unable to return to work due to his left knee injury. He indicated he no longer requires the use of crutches but still experiences pain. He further indicated he developed right knee pain due to favoring his injured left knee. He denied prior orthopedic treatment or prior surgery recommendations for his leftknee. He also denied any prior diagnoses ofatearto his left knee. Findings ofFact and Conclusions ofLaw The following legal principles govern the Court's analysis ofthis claim. In order to ultimately prevail, Mr. Soles bears the burden ofproving all essential elements ofhis claim by apreponderance ofthe evidence. 

### Scott v.Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). At an Expedited Hearing, however, his burden of proof is lower and requires him only to come forward with sufficient evidence from which this Court can determine that he is likely to prevail at a hearing on the merits. 

### See McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015). This lesser evidentiary standard does not relieve Mr. Soles ofthe burden ofproducing evidence ofan injury by accident that arose primarily out of and in the course and scope of employment at an Expedited Hearing, but "allows somereliefto be granted ifthat evidence does notrise 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). With the above principles in mind, the term "injury" is defined as "an injury by
3accident

... arising primarily out of and in the course and scope ofemployment, that causes death, disablement orthe need for medical treatment ofthe employee." !d. For an injury to be accidental, it must be "caused by a specific incident, or set of incidents, arising primarily out ofand in the course and scope ofemployment, and is identifiable by time and place ofoccurrence." !d. Here, there is no question that Mr. Soles was acting in the course and scope ofhis employment when he descended steps while carrying a canister of pesticide, and he experienced pain in left knee. Instead, Kirkland's asserts that Mr. Soles' injury did not arise out ofthe employment because the injury was idiopathic in nature and/or the result ofapre-existing condition. Addressing the idiopathic in nature defense first, the Court notes, "An idiopathic injury is one that has an unexplained origin or cause, and generally does not arise out of the employment unless 'some condition of the employment presents a peculiar or additional hazard."' 

### McCaffery v. Cardinal Logistics, 2015 TN Wrk. Comp. App. Bd. LEXIS 50, at *9 (Dec. 10, 2015) (internal citations omitted).
In 

### McCaffery, the Workers' Compensation Appeals Board noted, "An injury that occurs due to an idiopathic condition is compensable 'ifan employment hazard causes or exacerbates the injury."' 

### McCaffery, at *10-11, (citing

### Phillips v. A&HConstr. Co., 134 S.W.3d 145, 148 (Tenn. 2004)). TheAppeals Board further noted that "cause" means the accident originated in the hazards to which the employee was exposed as a result of performing his job duties. !d. Thus, the focus is on the causal link between the employment and the accident or injury, ratherthan a causal link between the employment and the idiopathic episode. !d.
For Mr. Soles to prove that his injury arose primarily out ofhis employment, he must prove a condition or hazard incident to his employment caused or exacerbated his injury. 

### Id; see also Osborne v. Beacon Transport, LLC, eta!., 2016 TN Wrk. Comp. App. Bd. LEXIS 49, at *6-7 (Sept. 27, 2016). Therelevant inquiry is not what causedthe alleged idiopathic condition or event, but what caused the injury. 

### Frye v. Vincent Printing Co., eta!, 2016 TN. Wrk. Comp. App. Bd. LEXIS 34, at*13 (Aug. 2, 2016).
Numerous Tennessee cases have dealt with idiopathic injuries, several ofwhich involved work injuries claimed while ascending or descending steps. Examples of injuries deemed idiopathic by the Supreme Court include an unexplained seizure or fainting episode, 

### see, e.g., Sudduth v. Williams, 517 S.W.2d 520, 523 (Tenn. 1974), and a knee "giving way" resulting in a fall, 

### see, e.g., Greeson v. Am. Lava Corp., 392 S.W.2d 931,934-35 (Tenn. 1965). An injury caused bypurelypersonal conditions, as opposedto an employment condition, qualifies as idiopathic. 

### See Thomas A. Reynolds, 20 Tennessee Practice Tennessee Workers' Compensation Practice and Procedure with Forms, § 10:7 (2005). An injury may arise out of employment, however, if causally
4related to the activity required by the employer, even ifthat activity bears no relationship to the normal work duties ofthe employee. 

### Young v. Taylor-White, LLC, 181 S.W.3d 324, 329 (Tenn. 2005).
In this case, the parties rely heavily on the cases of

### Martin v. Flagship Airlines, No. 01S01-9310-CH-00145, 1994 WL 902440 (Tenn. Workers' Comp. Panel June 27, 1994); 

### McConkey v. Vonore Police Dep't., 2006 Tenn. LEXIS 204 (Tenn. Workers' Comp. Panel Mar. 21, 2006); 

### Dickerson v. Sarl, 2007 Tenn. LEXIS 916 (Tenn. Workers' Comp. Panel May 29, 2007); and 

### Veler v. Wackenhut Servs., 2011 Tenn. LEXIS 78 (Tenn. Workers' Comp. Panel Jan. 28, 2011).
Mr. Soles argues the cases of

### Martin, McConkey, and 

### Veler are analogous to the case before this Court. However, in each ofthe cases of

### Martin, McConkey, and 

### Veler, the Special Workers' Compensation Appeals Panel found the alleged injuries compensable and awarded benefits, with consideration given to the remedial purpose of the Workers' Compensation Law in place at that time. However, the Appeals Board has noted, "Reliance on precedent from the Tennessee Supreme Court is appropriate unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation ofpre-July 1, 2014 statutes[.]"

### McCord, at*13, n.4. Conversely, Kirkland's seeks the Court's application ofthe opinions of 

### Greeson and 

### Dickerson. In both 

### Greeson and 

### Dickerson, the employees had a long history of knee problems. Mr. Greeson had a prior work injury, underwent surgery to remove a tumor from his lower spine, and suffered significant atrophy ofthe involved leg. Mr. Dickerson had two prior surgeries on the involved knee and walked with a limp at the time the injury occurred. Here, Mr. Soles stepped down onto his left foot while descending stairs, felt a gush ofpain in his left knee, and heard a pop. There is no evidence the stairs were defective. He did not slip, trip, or fall. He further did not think that carrying the canister of pesticide caused his injury, but acknowledged that he is not a medical doctor. Although in the days leading up to the work incident Mr. Soles suffered gout in his left knee, he denied any otherpriorproblems with his left knee. He further denied receiving orthopedic treatment for his left knee or receiving a diagnosis ofa left knee tearprior to the work incident. Upon careful consideration, at this time, this Court cannot find that Mr. Soles is likely to prevail at a hearing on the merits in establishing that a condition or hazard incident to his employment caused or exacerbated his injuries as required by 

### McCaffery and 

### Osborne. See alsoEnglish v. G4SSecure Solutions, etal., 2016 TN. Wrk. Comp. App. Bd. LEXIS 48 (Sept. 27, 2016). Therefore, his requests for workers' compensationbenefits are denied at this time.
For the reasons set forth above, it is unnecessary for the Court to address the



### . . 

## . remammg Issues.
5IT IS, THEREFORE, ORDERED as follows:
1. Mr. Soles' claim against Kirkland's Pest Control and its workers' compensation carrier for therequested workers' compensationbenefits is denied at this time.
2. This matter is set for a Scheduling Hearing on August 1, 2017, at 9:30a.m. Eastern Time. Theparties must call 865-594-0091 or 855-543-5041 toll-free to participate in the SchedulingHearing. Failure to appearby telephone may result in a determination ofthe issues withoutyour further participation.
ENTERED this the 23rd day ofJune, 2017.

HON. PAMELA B. JOHNSON Workers' CompensationJudge

APPENDIX Technical Record: 1. Petition for BenefitDetermination 2. Dispute CertificationNotice 3. Request for Expedited Hearing 4. Employer's Initial Response in Opposition to Employee's Request for Expedited Hearing 5. Employer's Motion for Continuance 6. Employer's Motionto Compel Discovery 7. Notice ofFilingPre-HearingBrief 8. Order Granting Motion to Continue and Motionto Compel and Order Setting Case for Status Conference 9. Notice ofFilingWage Statement 10.Agreed OrderExtending Time for Employee'sDiscovery Responses 11.Order Setting Expedited Hearing 12.Pre-HearingBriefofEmployee, Wesley Soles 13.Employer's supplemental PrehearingBrief 14.Employee's Motionto Strike 15.Employee's Motionto Amend Dispute Certification Notice 16.Employer's Responseto Motionto Amend Dispute CertificationNotice 17.Employer's Responseto Motionto Strike 18.Order Granting Employee's Motionto Amend Dispute CertificationNotice 19. OrderDenyingEmployee'sMotion to Strike
6

### 20.Notice ofFilingMedical Records ofMountain Hope Good Shepherd Clinic 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 orany attachments to them as allegations unless established by the evidence.

Exhibits: 1. Affidavit ofWesley L. 

### Soles 2. Affidavit ofLorieHale 3. Affidavit ofThomas Hobbs 4. FirstReport ofWork Injury, Form C-20 5. Wage Statement(s), Form C-41 6. Notice ofDenial ofClaim for Compensation, Form C-23, dated October 12, 2016 7. Notice ofDenial ofClaim for Compensation, Form C-23, dated October24, 2016 8. Kirkland's Pest Control Pay Stub for Pay Period of09/01/16- 09/15/16 9. Mr. Soles' Timeline ofScheduled Events 10.Mr. Soles' Requests for Temporary Total DisabilityBenefits 11.Mr. Soles' Handwritten Statement 12.Mr

. Soles' Description ofJob Responsibilities 13.KirklandPest Control Correspondence, dated October 21, 2016 14.Medical Record ofOutpatientDiagnostic Center 15.Table ofContents ofMedicalRecords: • Mountain Hope Good Shepherd Clinic • CovenantHealth • Rocky Top Medical Center • Tennessee Orthopedic Clinic 16.Mr. Soles' Injury Statement
Stipulations The parties stipulated to the following: the existence of an employment relationship; notice ofthedate ofinjury; and aweekly compensationrate of$313.73.

7CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sentto the following recipients by the following methods ofservice on this the 23rd day ofJune, 2017.

Name Certified Via Mail Fax Garry Ferraris, Esq. Employee'sAttorney AlexB. Morrison, Esq. Employer'sAttorney

8 Via Email X
X

p Service sentto: GFerraris@ferrarislaw.com
ABMorrison@mijs.com

HRUM, Court Clerk ou.rtCierk@tn.gov