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IN THE TENNESSEE COURT OF WORKERS’ COMPENSATION CLAIMS 

MARK D. GREEN 

DOCKET NO. 2014-05-00470 

 Employee, STATE FILE NO. 65639-2014 

v. DATE OF INJURY: July 24, 2014 

 JUDGE BAKER 

SUMPTER SOLUTIONS, LLC 

BRENTWOOD SERVICES 

ADMINISTRATORS, INC. 

 Employer/Carrier, 

 

ORDER ON EXPEDITED HEARING 

THIS CAUSE came before the Court upon the Request for Expedited Hearing filed on 

January 23, 2015, by Mark D. Green pursuant to Tennessee Code Annotated section 50-6-239(d)(1). 

 Although Mr. Green requested that the Court convene an evidentiary hearing, upon further 

discussion Mr. Green and attorney Catheryne Grant, counsel for Sumpter Solutions, LLC (Sumpter) 

and Brentwood Services (Brentwood) consented to having the Court issue an interlocutory order 

based on a review of the file pursuant to Rule 0800-02-21-.14(1)(c) of the Tennessee Comprehensive 

Rules and Regulations. Upon review of Mr. Green’s Request for Expedited Hearing and the 

entirety of the court file, and in consideration of the applicable law, the Court finds that it needs no 

additional information to decide Mr. Green’s request for medical benefits and enters the following 

order denying same. 

Issues 

Whether Sumpter should be required to provide Mr. Green additional medical benefits for his 

alleged work-related injury. 

Evidence Submitted 

The Court reviewed the entire case file in reaching its decision. Specifically, the Court 

reviewed and relied upon the following: 

A. Medical records of Dr. Chad Smalley 

B. Medical report of Dr. William C. Nemeth dated October 6, 2014 

C. C-42 Choice of Physician Form 
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D. Medical records of Dr. David Martin 

E. Medical records of Dr. Guy Fain 

F. Affidavit of Joseph Sumpter 

G. Affidavit of Eric Rogers 

H. Affidavit of Clay Binkley 

I. Affidavit of Mark Green dated January 6, 2015 

J. Correspondence from Dr. Smalley dated February 25, 2015 

K. Affidavit of Mark Green dated March 10, 2015 

L. Notice of Denial of Claim for Compensation 

M. Medical Report of Dr. William C. Nemeth dated November 7, 2014 

N. First Report of Injury 

O. MRI Report 

P. Affidavit of Alyssa Sumpter 

Q. Correspondence from Dr. Smalley bearing a November 7, 2014 fax transmission date. 

History of Claim 

 The Court derives the claim history provided below from the claim file: 

 On January 29, 2013, Mr. Green suffered an on-the-job injury. Sumpter provided treatment 

with Dr. David Martin at Sewanee Family Practice. (Exh. K). The note from Mr. Green’s first 

appointment with Dr. Martin includes the following description of the accident: 

He is here for workmans [sic] comp he injured his R knee 1/29/2013 

when he fell while carrying a jackhammer. He landed directly on his 

knee cap on a small tool box containing drill bits. He didnt [sic] 

break the skin but it did bruise. He used ibuprofen and kept it 

elevated that weekend and it improved. He has been doing a lot 

flooring work past 30 days with knee pads and his knee has gotten 

progressively swollen and painful again. 

Dr. Martin diagnosed joint pain, a knee contusion, and prepatellar bursitis. (Exh. D). 

 On July 24, 2014, Mr. Green suffered another injury to the same knee while working. The 

First Report of Injury states that the injury occurred when a rock got caught between the knee pad 

and his knee while Mr. Green was crawling. (Exh. N). 

Mr. Green went to the emergency room at Southern Tennessee Medical Center on July 30, 

2014, when his knee began to swell. At the emergency room, the providers aspirated and x-rayed 

Mr. Green’s knee and injected it with cortisone. (Exh. E). The attending physician, Dr. Guy Fain, 

diagnosed osteoarthritis and an abrasion. (Exh. E). He took Mr. Green off work pending evaluation 

and release by a workers’ compensation physician. (Exh. E). 

Sumpter provided Mr. Green a panel of physicians and he selected Dr. Chad Smalley as the 

authorized treating physician. (Exh. C). The medical records indicate that Mr. Green told Dr. 
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Smalley that he injured his right knee while crawling under a house to perform some plumbing. 

(Exh. C). He described the knee pain as “achy, burning and sharp” and rated the pain as an eight (8) 

on a scale of one (1) to ten (10). (Exh. C). Mr. Green also described experiencing weakness and 

radiation into his upper leg as well as “burning, catching, cracking, gait abnormality or limp, 

grinding, locking, loss of motion popping and stiffness and instability.” (Exh. C). Mr. Green 

additionally reported some discharge in the area around his knee. (Exh. C). Dr. Smalley issued 

restrictions prohibiting Mr. Green from working on his knees and from twisting, bending, squatting 

and kneeling. (Exh. C). He also ordered an MRI. (Exh. C). 

On August 14, 2014, Mr. Green underwent an MRI. (Exh. O). The MRI revealed no 

ligament damage or meniscal tears. (Exh. O). The MRI did, however, reveal “Focal grade 2-4 

medial condyle chondromalacia” and a “Large area of grade 4 medial chondromalacia patella.” 

(Exh. O). 

Mr. Green returned to Dr. Smalley on August 27, 2014. (Exh. C). Dr. Smalley diagnosed 

chondromalacia in the right patella and right knee pain. (Exh. C). He ordered an injection and 

continued Mr. Green’s workplace restrictions. (Exh. C). Mr. Green received the injection but his 

symptoms did not improve. 

At a visit on October 1, 2014, Dr. Smalley wrote the following in the “Plan” section of his 

treatment notes: “We discussed that his symptoms have continued to be recalcitrant to conservative 

treatment. He is a candidate for an arthroscopy with shaving chondroplasty and microfracture 

technique. He understands that the arthroscopic procedure will not fix the arthritis or remove all 

arthritis from the knee, and that likely the arthritic degeneration will continue over time with 

continued symptoms and possibly even additional procedures necessary, even a total knee 

arthroplasty in the future.” (Exh. C). 

On October 6, 2014, Sumpter obtained a peer review report from Dr. William C. Nemeth 

concerning Mr. Green’s need for knee surgery. (Exh. B). In answering the question of whether a 

causal relationship existed between Mr. Green’s July 24, 2014 injury and the request for “right knee 

arthroscopy with shaving chondroplasty with microfacture technique,” Dr. Nemeth wrote: 

Absolutely not, the claimant has a history of right knee pain due to 

prepatellar bursitis. The changes in the medial facet of the patella in 

this claimant are due to chronic loading conditions from the 

biomechanics of the patellofemoral joint and have nothing to do with 

this alleged workplace injury itself. The proclivity toward 

degenerative joint disease plus the biomechanics of the joint have 

contributed to this lesion in the medial patellar facet. Abrasion 

chondroplasty or microfracture is not indicated in this claim as it 

would relate to any workplace injury itself. The alleged workplace 

injury likely caused exacerbation of preexisting disease which was 

already well document in this claimant. It did not cause any 

structural changes to the patellofemoral joint in this claim. That said, 

requests for knee arthroscopy with shaving chondroplasty and 

microfracture does not relate to this workplace injury itself. 
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(Exh. B). 

 On October 8, 2014, Sumpter faxed a copy of Dr. Nemeth’s report to Dr. Smalley along with 

a questionnaire asking whether Dr. Smalley agreed with Dr. Nemeth’s opinion. (Exh. Q). Dr. 

Smalley checked “Yes” on the questionnaire and faxed it back to Sumpter. (Exh. Q). 

 On October 29, 2014, Mr. Green returned to Dr. Smalley for follow-up treatment. In the 

treatment notes, Dr. Smalley again stated that “...an arthroscopy with shaving chondroplasty and 

microfracture technique...” would benefit Mr. Green. (Exh. C). The treatment notes also contained 

the following: “Although there are findings that would suggest an underlying chronic state of 

chondromalacia we do believe there to be acute symptoms that are causally related to the reported 

injury at work. We do feel an arthroscopic procedure could address these symptoms and hopefully 

get MR. [sic] Green back to his baseline of function.” (Exh. C). 

 Upon receiving this medical note, Sumpter forwarded it to Dr. Nemeth for review. On 

November 7, 2014, Dr. Nemeth issued a second report. (Exh. M). In responding to the question of 

whether Dr. Smalley’s October 29, 2014 office note changed his previous opinion, Dr. Nemeth 

wrote: 

No, the claimant’s acute injury was a prepatellar bursitis of the right 

knee. That has been treated successfully and resolved. The 

additional problems with the knee are due to chronic degenerative 

changes in the patellofemoral joint and joint in general and have 

nothing to do with this mechanism of injury itself. That said, any 

arthroscopic chondroplasty or microfracture procedure done for this 

joint relates to the previous preexisting degenerative arthritis of the 

knee which does not relate to the acute prepatellar bursitis which was 

successfully treated in this claimaint. 

(Exh. M). 

 On November 26, 2014, Mr. Green visited Dr. Smalley again. The treatment notes from this 

visit stated “Although there are findings that would suggest an underlying chronic state of 

chondromalacia we do believe there to be acute symptoms that are causally related to the reported 

injury at work. We do feel an arthroscopic procedure could address these symptoms and hopefully 

get Mr. Green back to his baseline of function.” (Exh. C). 

On January 28, 2015, Sumpter sent Dr. Smalley a letter seeking clarification on the causal 

relationship between Mr. Green’s need for surgery and the July 24, 2014 workplace accident. (Exh. 

J). On February 25, 2015, Dr. Smalley provided the following response: 
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(Exh. J). On March 2, 2015, Sumpter issued a notice denying Mr. Green’s claim on the ground of 

compensability. (Exh. L). 

Employee’s Contentions 

 Mr. Green argues that he suffered a compensable injury to this right knee on July 24, 2014. 

Essentially, Mr. Green claims that the July 24, 2014 injury constituted a progression or 

reaggravation of the previous right knee injury he suffered on January 29, 2013. In his affidavit, Mr. 

Green stated that he continued to suffer pain since January 29, 2013, and missed time off from work 

due to the pain and swelling in his knee. Mr. Green further states that he suffered no knee pain prior 

to January 29, 2013. He also claims that much of the pain and swelling from the 2013 injury had 

lessened, or come under control, prior to the July 24, 2014 incident. Mr. Green requests an order 

requiring Sumpter to pay the cost of the surgery necessary to correct his knee condition. 

Employer’s Contentions

 Sumpter argues that the current need for treatment did not arise from his July 24, 2014 

accident. Sumpter relies upon the opinion of the authorized treating physician, Dr. Smalley, in 
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support of its position that the Court should not order it to pay for Mr. Green’s knee surgery. 

Findings of Fact and Conclusions of Law 

Standard Applied 

“The Workers’ Compensation Law shall not be remedially or liberally construed in favor of 

either party but shall be construed fairly, impartially, and in accordance with basic principles of 

statutory construction favoring neither the employee nor employer.” Tenn. Code Ann. 50-6-116 

(2014). Tennessee Code Annotated section 50-6-239(c)(6) provides that “[u]nless the statute 

provides for a different standard of proof, at a hearing, the employee shall bear the burden of proving 

each and every element of the claim by a preponderance of the evidence.” Tenn. Code Ann. section 

50-6-239(c) (2014). A different standard of proof exists for the issuance of interlocutory orders at 

expedited hearings than the standard of proof required at compensation hearings. McCord v. 

Advantage Human Resourcing, No. 2014-06-0063 (Tenn. Work. Comp. App. Bd., March 27, 2015). 

A workers’ compensation judge may enter an interlocutory order for medical or temporary benefits 

upon a determination that the injured employee would likely prevail at a hearing on the merits. 

Tenn. Code Ann. 50-6-239(d)(1) (2014); McCall v. Nat’l Health Care Corp., 100 S.W.3d 209, 214 

(Tenn. 2003). 

Factual Findings

 The Court finds that Mr. Green suffered an injury on July 24, 2014, while crawling under a 

house to install plumbing. The Court finds that Mr. Green was performing activities within the 

course and scope of his employment for Sumpter when the incident occurred. The Court finds that 

Mr. Green’s current symptoms and need for surgery are related to his underlying degenerative 

chondromalacia. 

 

Application of Law to Facts 

At this time, the Court must deny Mr. Green’s request for surgical treatment because the 

opinion of the authorized treating physician does not support a causal relationship between the July 

24, 2014 injury and his current need for arthroscopic surgery. Accordingly, Mr. Green is unlikely to 

succeed at a hearing on the merits and cannot recover temporary benefits at this time. See Tenn. 

Code Ann.§ 50-6-239(d)(1) (2014). 

Tennessee Code Annotated Section 50-6-102(13) defines an injury as follows: 

“Injury” or “personal injury” mean an injury by accident ... arising 

primarily out of and in the course and scope of employment, that causes 

...the need for medical treatment of the employee; provided, that: 

(A) An injury is “accidental” only if the injury is 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[.] 
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Tenn. Code Ann. § 50-6-102(13)(A) (2014). In this case, Mr. Green provided an affidavit stating 

that his “knee pain flared up after crawling under a house using knee pads on July 24, 2014.” (Exh. 

I). The parties have not disputed that Mr. Green was performing work for Sumpter when crawling 

under the house. 

 The statutory definition of “injury” additionally provides: “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(13)(B) (2014). In this case, Mr. Green 

provided an affidavit stating that he injured his knee while crawling under a house. (Exh. I). 

However, the statute further provides: “An injury causes ... the need for medical treatment

only if it has been shown to a reasonable degree of medical certainty that it contributed more than 

fifty percent (50%) in causing ... [the] need for medical treatment, considering all causes.” Tenn. 

Code Ann. § 50-6-102(13)(C) (2014) (emphasis added). Longstanding Tennessee case law mirrors 

this requirement. Except in “the most obvious, simple and routine cases,” a workers' compensation 

claimant must establish by expert medical testimony that he or she is injured and that there exists a 

causal relationship between the injury and the claimant's employment activity. Wheetley v. State,

No. M2013-01707-WC-R3-WC, 2014 Tenn. LEXIS 476, (Tenn. Workers’ Comp. Panel, June 25, 

2014) (citing Excel Polymers, LLC v. Broyles, 302 S.W.3d 268, 274 (Tenn. 2009)); Cloyd v. Hartco 

Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008). 

The authorized treating physician’s opinion on causation enjoys a presumption of correctness 

that can be overcome through the presentation of contrary evidence that satisfies a preponderance 

standard. See Tenn. Code Ann. § 50-6-102(13)(E) (2014). Any care prescribed by the physician 

selected from the panel is presumed to be reasonable and necessary for treatment of the employee’s 

work-related injury. See Russell v. Genesco, Inc., 651 S.W.2d 206, 211 (Tenn. 1983). 

Here, Mr. Green seeks a surgical procedure originally recommended by his authorized 

treating physician. On November 26, 2014, Dr. Smalley opined that although findings suggested 

underlying chronic chondromalacia, he believed that Mr. Green had symptoms related to the July 24, 

2014 injury, which could benefit from the arthroscopic surgery. (Exh. C). Dr. Smalley’s opinion, 

however, has since changed. On February 25, 2015, Dr. Smalley opined that the arthroscopic 

surgery is indicated to address the underlying chondromalacia rather than the “symptoms related to 

the acute exacerbation.” (Exh. J). He further stated that the underlying chondromalacia 

contributed more than fifty percent (50%) to Mr. Green’s need for arthroscopic surgery. (Exh. J). 

Accordingly, Mr. Green failed to show that the July 24, 2014 accident contributed more than fifty 

percent (50%) in his current need for surgery. For that reason, the Court denies his request for 

medical benefits. 

In his affidavits, Mr. Green also indicated a belief that his current need for medical treatment 

may relate to his January 29, 2013 workplace injury because he continued to suffer pain 

intermittently in the same area of the body since the 2013 accident occurred. This Court has original 

and exclusive jurisdiction over worker’s compensation claims where the injury occurred on or after 

July 1, 2014. See Tenn. Code Ann. § 50-6-237 (2014). So far as Mr. Green requested medical 
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benefits under Sumpter’s obligation to provide future medical care for the January 29, 2013 injury, if 

any, this Court lacks subject matter jurisdiction. 

Lastly, the Court declines to declare Mr. Green’s claim non-compensable at this time. 

Although he has not presented sufficient proof to carry his burden of proof in this Expedited 

Hearing, Mr. Green could still prevail at a hearing on the merits if he provides an appropriate 

medical opinion that rebuts the opinion provided by Dr. Smalley. 

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Green’s request for medical benefits is denied. 

2. This matter is set for Initial Hearing via teleconference on May 12, 2015, at 10:30 a.m. 

(CDT). The parties must participate in the Initial Hearing by calling (615) 741-2113. 

Failure to participate in the hearing may result in decisions being made in the case 

without the input of the non-participating party. 

ENTERED ON THIS THE 21ST DAY OF APRIL, 2015. 

_____________________________________ 

 Joshua Davis Baker 

Workers' Compensation Judge 

Court of Workers’ Compensation Claims 

Initial Hearing: 

An Initial Hearing has been set with Judge Joshua Davis, Court of Workers Compensation 

Claims. You must call (615) 741-2113 or toll free at (855) 874-0474 to participate in the Initial 

Hearing. Please Note: You must call in on the scheduled date/time to participate. Failure to call in 

may result in a determination of the issues without your further participation. All conferences are set 

using Central Time (CT). 
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Right to Appeal: 

Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal the 

decision to the Workers’ Compensation Appeals Board. To file a Notice of Appeal, you must: 

1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal.” 

2. File the completed form with the Court Clerk within seven (7) business days of the date the 

Expedited Hearing Order was entered by the Workers’ Compensation Judge. 

3. Serve a copy of the Request for Appeal upon the opposing party. 

4. The parties, having the responsibility of ensuring a complete record on appeal, may request 

from the Court Clerk the audio recording of the hearing for the purpose of having a transcript 

prepared by a licensed court reporter and filing it with the Court Clerk within ten (10) 

calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the 

parties may file a statement of the evidence within ten (10) calendar days of the filing of the 

Expedited Hearing Notice of Appeal. The statement of the evidence must be approved by 

the Judge before the record is submitted to the Clerk of the Appeals Board. 

5. If the appellant elects to file a position statement in support of the interlocutory appeal, the 

appealing party shall file such position statement with the Court Clerk within three (3) 

business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues 

presented for review and including any argument in support thereof. If the appellee elects to 

file a response in opposition to the interlocutory appeal, appellee shall do so within three (3) 

business days of the filing of the appellant’s position statement. 
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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 21st day of April 2015. 

Name Certified 

Mail 

First 

Class 

Mail 

Via 

Fax 

Fax 

Number 

Via 

Email 

Email Address 

 Mark D. Green x Mdgreen41@gmail.com

Catheryne Grant x catherynelgrant@feeneymurray.com

 

_____________________________________

 Penny Patterson-Shrum, Clerk 

Tennessee Court of 

Workers’ Compensation Claims