FILED 

June 23~ 2017 

1N COURT Of 

l\'ORKIR.S' CO:MPI.NS .. :U'ION 

CL.illiS 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT KNOXVILLE 

WESLEY L. SOLES, 

Employee, 

v. 

KIRKLAND'S PEST CONTROL, 

Employer, 

and 

STARNET INSURANCE COMPANY, 

Carrier. 

) Docket No.: 2016-03-0991 

) 

) 

) State File No.: 72908-2016 

) 

) 

) Judge Pamela B. Johnson 

) 

EXPEDITED HEARING ORDER 

DENYING WORKERS' COMPENSATION BENEFITS 

Time 2:20 Pll 

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 of and in the course and scope of his employment with 

Kirkland's Pest Control. For the reasons set forth below, the Court holds Mr. Soles did 

not carry his burden of proof. Thus, the Court denies his claim for temporary disability 

and medical benefits at this time. 

History of Claim 

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 

his job duties, he carried a canister of insecticide 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 of gout 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 pain had improved. 

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During 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 of insecticide, he "heard a pop" and "felt a gush of pain" 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 that his 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, carrying the 

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, of the work incident, and she rendered a diagnosis of acute 

left knee pain. Ms. K waasny further recommended the use of crutches and a knee brace, 

and she placed Mr. Soles on restricted duty, including no use of left leg and sedentary 

work only. Mr. Soles returned to modified work the next day. 

Kirkland's then provided Mr. Soles with a panel of physicians, 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 work restrictions. At this visit, Mr. Soles indicated he was 

required to pay $100 out-of-pocket because he did not have a claim number; he denied 

ever being reimbursed for this expense. 

Through early September, Mr. Soles continued working modified duty; his last 

day worked was September 19. He also continued to treat with his primary care provider 

at Mountain Hope on September 20 and September 29, and received a diagnosis of right 

knee and leg pain with swelling following left knee pain and use of crutches. The 

attending provider instructed Mr. Soles to see the workers' compensation physician. 

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 of gout in the left knee and foot. Dr. Johnson 

recommended continued physical therapy and placed Mr. Soles off work completely until 

he was evaluated and cleared by 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 

2 
October 8, which demonstrated a linear intrasubstance tear involving the medial portion 

of the patellar tendon 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 of idiopathic incident. Additionally, on October 21, Kirkland's sent 

correspondence to Mr. Soles instructing him to return to work immediately or submit his 

resignation if unable to perform the 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 of the 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 of physical 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 if Kirkland's approved treatment or if 

he decided to pursue treatment on his own. For his evaluation with Dr. Whiton, Mr. 

Soles testified he paid $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 left knee. He also denied any prior diagnoses of a tear to his left 

knee. 

Findings of Fact and Conclusions of Law 

The following legal principles govern the Court's analysis of this claim. In order 

to ultimately prevail, Mr. Soles bears the burden of proving all essential elements of his 

claim by a preponderance of the 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 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. Carl ex Glass Co., 20 15 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 

3 
accident ... arising primarily out of and in the course and scope of employment, that 

causes death, disablement or the need for medical treatment of the employee." !d. For an 

injury to be accidental, it must be "caused by a specific incident, or set of incidents, 

arising primarily out of and in the course and scope of employment, and is identifiable by 

time and place of occurrence." !d. 

Here, there is no question that Mr. Soles was acting in the course and scope of his 

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 of the employment because the injury was idiopathic in nature and/or the result 

of a pre-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, 20 15) (internal citations omitted). 

In McCaffery, the Workers' Compensation Appeals Board noted, "An injury that 

occurs due to an idiopathic condition is compensable 'if an employment hazard causes or 

exacerbates the injury."' McCaffery, at *10-11, (citing Phillips v. A&H Constr. Co., 134 

S.W.3d 145, 148 (Tenn. 2004)). The Appeals 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, rather than a causal link between the employment 

and the idiopathic episode. !d. 

For Mr. Soles to prove that his injury arose primarily out of his 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). The relevant inquiry is not what caused the 

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 of which 

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 by purely personal conditions, as opposed to 

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 

4 
related to the activity required by the employer, even if that activity bears no relationship 

to the normal work duties of the 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 of the 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 of pre-July 1, 2014 statutes[.]" McCord, at* 13, n.4. 

Conversely, Kirkland's seeks the Court's application of the 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 of the 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 of pain 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 other prior problems with his left knee. He further denied receiving 

orthopedic treatment for his left knee or receiving a diagnosis of a left knee tear prior 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 also English v. G4S Secure Solutions, et al., 2016 TN. Wrk. 

Comp. App. Bd. LEXIS 48 (Sept. 27, 2016). Therefore, his requests for workers' 

compensation benefits are denied at this time. 

For the reasons set forth above, it is unnecessary for the Court to address the . . . remammg Issues. 

5 
IT IS, THEREFORE, ORDERED as follows: 

1. Mr. Soles' claim against Kirkland's Pest Control and its workers' compensation 

carrier for the requested workers' compensation benefits is denied at this time. 

2. This matter is set for a Scheduling Hearing on August 1, 2017, at 9:30a.m. 

Eastern Time. The parties must call 865-594-0091 or 855-543-5041 toll-free to 

participate in the Scheduling Hearing. Failure to appear by telephone may result 

in a determination of the issues without your further participation. 

ENTERED this the 23rd day of June, 2017. 

HON. PAMELA B. JOHNSON 

Workers' Compensation Judge 

APPENDIX 

Technical Record: 

1. Petition for Benefit Determination 

2. Dispute Certification Notice 

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 Motion to Compel Discovery 

7. Notice of Filing Pre-Hearing Brief 

8. Order Granting Motion to Continue and Motion to Compel and Order Setting Case 

for Status Conference 

9. Notice ofFiling Wage Statement 

10. Agreed Order Extending Time for Employee's Discovery Responses 

11. Order Setting Expedited Hearing 

12. Pre-Hearing Brief of Employee, Wesley Soles 

13. Employer's supplemental Prehearing Brief 

14. Employee's Motion to Strike 

15. Employee's Motion to Amend Dispute Certification Notice 

16. Employer's Response to Motion to Amend Dispute Certification Notice 

17. Employer's Response to Motion to Strike 

18. Order Granting Employee's Motion to Amend Dispute Certification Notice 

19. Order Denying Employee's Motion to Strike 

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20. Notice of Filing Medical Records of Mountain 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 or any attachments to them as allegations unless established by 

the evidence. 

Exhibits: 

1. Affidavit of Wesley L. Soles 

2. Affidavit ofLorie Hale 

3. Affidavit of Thomas Hobbs 

4. First Report of Work Injury, Form C-20 

5. Wage Statement(s), Form C-41 

6. Notice ofDenial of Claim for Compensation, Form C-23, dated October 12, 2016 

7. Notice ofDenial of Claim for Compensation, Form C-23, dated October 24, 2016 

8. Kirkland's Pest Control Pay Stub for Pay Period of09/01/16- 09/15/16 

9. Mr. Soles' Timeline of Scheduled Events 

10. Mr. Soles' Requests for Temporary Total Disability Benefits 

11. Mr. Soles' Handwritten Statement 

12. Mr. Soles' Description of Job Responsibilities 

13. Kirkland Pest Control Correspondence, dated October 21, 2016 

14. Medical Record of Outpatient Diagnostic Center 

15. Table of Contents ofMedical Records: 

• Mountain Hope Good Shepherd Clinic 

• Covenant Health 

• 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 ofthe date of injury; and a weekly compensation rate of$313.73. 

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CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the Expedited Hearing Order was 

sent to the following recipients by the following methods of service on this the 23rd day 

of June, 2017. 

Name Certified Via 

Mail Fax 

Garry Ferraris, Esq. 

Employee's Attorney 

Alex B. Morrison, Esq. 

Employer's Attorney 

8 

Via 

Email 

X 

X 

p 

Service sent to: 

GFerraris@ferrarislaw.com 

ABMorrison@mijs.com 

HRUM, Court Clerk 

ou.rtCierk@tn.gov