TENNESSEE BUREAUOF WORKERS' COMPENSATION IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT NASHVILLE
Thomas Gilbert, Employee, ) DocketNo.: 2016-06-0832 ) 

### v. United Parcel Service, Inc. Employer, And LibertyMutual Insurance Company, Carrier. ) ) State File No.: 33590-2016 ) ) ) Judge Kenneth M. Switzer ) )
EXPEDITEDHEARING ORDER

This case came before the undersigned workers' compensationjudge on July 6, 2016, on the Request for Expedited Hearing filed by the employee, Thomas Gilbert, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is whether Mr. Gilbert sustained a new, compensable aggravation of his preexistingcondition ora continuation ofhis previous workinjury.
Forthe reasons set forth below, the Court finds Mr. Gilberthas shown a likelihood of success in proving at a hearing on the merits that he sustained a new, graduallyoccurring injury. He is entitled to medical benefits, but has not shown entitlement to temporary total disability benefits at this time. Further, while Mr. Gilbert has not shown entitlement to a statutory penalty regarding the employer's failure to provide timely temporary disability benefits, the Court refers the matter to the Bureau's Compliance Unit for consideration of whether penalties are appropriate for the Employer, United Parcel Service, and the carrier, Liberty Mutual, regarding delays in filing a First Report ofInjury andNotice ofDenial. 1 History ofClaim
Mr. Gilbert is a fifty-four-year-old resident ofMaury County, Tennessee. He has

1A complete listing ofthe technical record and exhibits admitted atthe ExpeditedHearing is attachedto this Order as an appendix. 1worked for UPS as apackagecardriver for approximately sixteenyears. Inthat capacity, he is occasionally required to lift items weighing up to seventy pounds and to "stair climb." (Ex. 9.) Mr. Gilbert estimatedhe climbed into his worktruck approximately 150 to 200 times perday, five days perweek, steppingup approximately eighteen inches with his left leg first as the "normalmotion" eachtime.
Mr. Gilbert sustained a work-related injury to his left knee on May 9, 2011, while working for UPS. Dr. David Moore, the authorized treating physician, performed an arthroscopic partial medial meniscectomy and chondroplasty and ultimately released him to work in October 2011, assigning a two-percent permanent partial impairment rating. (Ex. 1at 16-17.) Theparties enteredinto a settlement agreement, whichthe Circuit Court for Maury County approved on February 3, 2012, providing lifetime medical benefits for the injury. (Ex. 3, A-C.)
Pursuant to the agreement, Mr. Gilbert continued to receive authorized care from Dr. Moore. He administered injections in October and November2011, as well as April, August and December 2012. (Ex. 1 at 17, 21, 26, 29, 31.) Mr. Gilbert testified the leftknee condition improved over time and he stopped seeing Dr. Moore in December 2012 "because the pain was gone and I could function normally." Regarding whether he felt "manageable discomfort" after ceasing treatment with Dr. Moore until returning to seek treatment in 2015, Mr. Gilbert explained, "You can askjustabout any driverthat drives a package car for UPS, there is some discomfort in the knees and backthroughout the day, every day youwork. Soyes, there is, to some extent, manageable discomfort."
Mr. Gilbert testified he had no problems with his left knee in 2013 and 2014, but in approximately April or May 2015, he began experiencing pain in his left knee when climbing into the truck. Oncethepainintensified, he returnedto Dr. Moore. Notes from a July 23, 2015 visit document the onset ofmoderate medial compartment osteoarthritis. (Ex. 1at 36.) The notes state:
Dr. Moore does think that he has simply aggravated that, which has caused the increase in pain and swelling to his knee. He does think the compression ofhis medial compartment osteoarthritis is directly related to his medial meniscus tear that was caused by his initial work-related injury inMay of2011.
!d. Dr. Moore echoed that opinion at a visit in October 2015. !d. at 37. Mr. Gilbert received injections for pain atbothvisits.
In January 2016, Dr. Moore recommended a total knee replacement and referred Mr. Gilbert to Dr. Gregory Raab, an arthroplasty specialist. !d. at 44. Notes from that visit state, ""My impression is that his [need] for a total knee arthroplasty is directly related to his meniscal injury." !d. Dr. Raab saw Mr. Gilbert on April 22, 2016, noting
2his history ofsurgery and opining: [Mr. Gilbert] had been doing reasonably well until more recently, and over the last several months has had significant increase in his symptoms with pain worsening, bothmedially and anteriorly with stairs. He now describes the pain is constant. He has dif ficulty walking. He has difficulty with stairs, which is challenging given the patient'sjob as a UPS driver, where he is constantly in and out ofhis vehicle loading and unloading.


### !d

. at 45. Dr. Raab agreed the knee replacement is necessary, reading x-rays and concluding: "Four views ofthe left knee from 01/07/2016 reveal a severe bone-on-bone medial compartment arthritis and moderate patellofemoral arthritis

. This is aprogression from x-rays both In [sic] July 2015, as well as significant progression since January 2012." 

### !d. at48.
Mr. Gilbert's counsel sent a causation letter on April26, 2016,to Dr. Moore. (Ex. 7.) Inrelevantpart, itreads as follows:

1. Has Mr. Gilbert sustainedanaggravation ofhis specific !eftinjury as a result of repetitive climbinginto thetruck duringhisjobas aUPS driver? 1:**~** (&il_ .J-<:>**[41~ ~·_,.C#IJ**  J-.-,.. 0""-**~** -:.t-L.... 

# G No

### \'~<)~ 

### of**~~** 6fr ·
2. Is this aggravation atleast S l percentcauseofhis currentneed for knee replacement?**~ ~(A~·** 



# bvJNo

3. Are the above opinions to areasonable degree ofmedicalcertainty?

(Ex. 7 at 2.)
Mr. Gilbert learned ofDr. Moore'sresponse on May 2, 2016. Records confirm he telephoned his supervisor, Richard Bonee, on that date. (Ex. 10.) According to Mr. Gilbert, he told Mr

. Bonee he suffered a new, cumulative-trauma injury. Mr. Bonee acknowledgedhe characterizedthe injury in that manner, andthatMr. Gilbert telephoned him again on May 4, 2016, to report a new injury. Mr. Gilbert's counsel followed-up with a May 5, 2016 letter entitled "Notice ofInjury"to Mr. Bonee. (Ex. 11.) Mr. Bonee admitted receiving the letter. He filed a First Report ofInjury on June 22, 2016, only afterthe adjustertold himto do so.
Mr. Gilbert's last day worked was May 6, 2016, according to the Affidavit of Doug Grissom, his supervisor. (Ex. 5 at 2.) Mr. Grissom observed him limping that
3morning and, after consulting with Mr. Bonee, sent him home. Mr. Gilbert testified he remains under UPS' employ, but UPS will not allow him to work until released by a physicianafter surgery. UPSpaidno temporary disability benefits. Liberty Mutual, UPS' carrier, sought utilization review regarding the knee replacement, which surgery was certified as medically necessary on May 5, 2016. (Ex. 3 at 2.) Liberty Mutual authorized the procedure and scheduled it to takeplace on July 12, 2016. !d. at 3. However, Mr. Gilbert cancelledthe surgery on June 10, 2016, expressing concern that having surgery as authorized under the previous settlement would have a negative effect inhis subsequent claim.
Mr. Gilbert filed a Petition for Benefit Determination (PBD) seeking medical and temporary disability benefits on May 5, 2016. The parties did not resolve the disputed issues through mediation, andthe mediating specialist filed aDispute CertificationNotice (DCN) on June 2, 2016. Mr. Gilbert filed a Request for Expedited Hearing on June 10, 2016, and an affidavit on June 15, 2016. UPS filed its "Opposition" to the hearing requeston June 23, 2016. On that same day, Mr. Gilbert filed a "Petition for Penalties."
At the expedited hearing, Mr. Gilbert asserted the 2011 injury resulted in a condition that he gradually aggravated over the course ofthe next five years ofwork, resulting in a new, continuous-trauma injury and the need for a knee replacement. Dr. Moore's causation letter supports this argument. Mr. Gilbert has been unable to work since UPS sent him home on May 6, 2016. He has been without income since that date and is entitled to temporary disability benefits. UPS' failure to pay temporary disability benefits entitles him to apenalty and an award ofattorney fees.
UPS countered the alleged injury is a direct, predictable consequence ofthe May 2011 injury.2 The medical records from 2011 through 2015 document Mr. Gilbert experienced left-knee pain throughout, while they do not state he mentioned climbing into his truck as exacerbating his pain. Mr. Gilbert is entitled to medical benefits

- specifically, a knee replacement- under the 2012 settlement agreement, which surgery it authorized. Becausethis is not a new injury, no temporary disability benefits are owed. Findings ofFact and Conclusions ofLaw Admissibilityof Dr. Raab 's Response toAdjuster
Before addressingthe merits ofMr. Gilbert's claim, the Court first addresses UPS' introduction into evidence ofa fax from adjuster Sarah Moore to Dr. Raab dated May 4, 2016. The fax contains an unsigned, handwritten response to questions addressing

2 UPS additionally asked the Courtto deny Mr. Gilbert's hearing request in its Opposition to Motion for Expedited hearing, butdid notraise the objection atthe hearing. The Courtconsiders it waived. 4causation. A copy ofthe fax was referenced in Ms. Moore's affidavit (Ex. 3) and was attached to the DCN. The Court heard both parties regarding its admissibility, marked it for identification only andreservedruling.
The Court finds the fax inadmissible. Tennessee Code Annotated section 239(c)(l) (2015) provides the Rules ofEvidence shall govern proceedings at all hearings before a workers' compensationjudge unless an alternate procedural or evidentiary rule has been adopted by the administrator, and that when a rule adopted by the administrator conflicts with the Rules ofEvidence, the rule adopted by the administrator shall apply. Tennessee Compilation Rules and Regulations 0800-02-21-.16(6)(b) (2015) states, "All medical records signed by a physician

... shall be admissible." Dr. Raab's purported response is unsigned; therefore, without other assurances of authenticity, it is inadmissible.
The Court is unpersuaded by UPS' argument that its inclusion as an exhibit to its adjuster's affidavit is sufficient authentication underthe "return letter doctrine." UPS did notcite case law where aTennessee appellate court adopted orfavorably treated thereply doctrine.3 The Court additionally found no such authority. M

. oreover, according to the adjuster's affidavit, the fax has been in Liberty Mutual's and/or UPS' possession since May 24, 2016, well in advance of the expedited hearing. UPS could have taken additional steps to assure its admissibility but failed to do so. Further, even ifthe fax were admissible, the Court finds the document's probative value weighs against UPS because Dr. Raab wrote he is "unable to determine" what percentage ofMr. Gilbert's need for kneereplacementsurgery is relatedto the 2011 work injury. 

### Compensability
In order to grant or deny Mr. Gilbert's requested relief, the Court must apply the following legal principles. In general, Mr. Gilbert, as the employee, bears the burden of proofon all prima facie elements ofhis workers' compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); 

### see also Buchanan v. 

### Car/ex Glass Co., No. 2015-01-0012, 2015 TNWrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). Mr. Gilbert need not prove every element ofhis claim by a preponderance of the evidence in order to obtain relief at an expedited hearing. 

### McCord v. 

### Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7- 8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). Rather, at an expedited hearing, Mr. Gilbert has the burden to come forward with sufficient evidence from which this Court can determine he is likely to prevail at a hearing on the merits. 

### !d. This lesser evidentiary standard does not relieve Mr. Gilbert ofthe burden ofproducing evidence of an injury by accident that arose primarily out of and in the course and scope of

3 The Court believes counsel's reference to the "return letter doctrine" is actually the reply doctrine. "[L]etters and presumably telegrams are prima facie authentic if their content is responsive to prior properly admitted communications. ' U.S. v. Wein tein. 762 F.2d 1522, 1533 (11th Cir. 1985). 5employment at the expedited hearing, but allows some relief to be granted if that evidence does notrise to the level ofa "preponderance ofthe evidence." 

### See Buchanan, 2015 TNWrk. Comp. App. Bd. LEXIS 39, at *6. Applying these legal principles to the facts ofthis case, the Court first considers whether Mr. Gilbert is likely to prevail at a hearing on the merits regarding the compensability of his claim. Generally, to be compensable, an injury must arise primarily out of and in the course and scope of employment and must cause death, disablement, orthe need for medical treatment ofthe employee. Tenn. Code Ann. § 50- 6-102(14) (2015). The Workers' Compensation Law and case law provide for the compensability of gradually-occurring aggravations of preexisting conditions. The Workers' CompensationAppeals Boardexplained:
An "accidental" injury generally does not include the aggravation ofa preexisting condition "unless it can be shown to a reasonable degree of medical certainty that the aggravation arose primarily out of and in the course and scope ofemployment." Tenn. Code Ann. § 50-6-102(14)(A). Thus, in order to establish a compensable aggravation as part of the accidental injury, an employee must prove by a preponderance of the evidence that the employment contributed more than fifty percent in causingthe aggravation. 

### See alsoMiller v. Lowe'sHome Centers, Inc., No. 2015-05-0158, 2015 TN Wrk. Comp. App. Bd. LEXIS 40, at *13 (Tenn. Workers' Comp. App. Bd. Oct. 21, 2015) ("[A]n employee can satisfy the burden ofproving a compensable aggravation if: (1) there is expertmedical proofthat the work accident 'contributed more than fifty percent (50%)' in causing the aggravation, and (2) the work accident was the cause ofthe aggravation 'more likely than not considering all causes."'). Under such circumstances, the injured worker qualifies for medical treatment "made reasonably necessary by [the] accident." Tenn. Code Ann. § 50-6- 204(a)(l)(A) (2015).


### Sanker v. Nacarato Trucks, Inc., et al., No. 2016-06-0101, 2016 TN Wrk. Comp. App. Bd. LEXIS 27, at *8-9 (Tenn. Workers' Comp. App. Bd. July 6, 2016). Here, the Court finds Dr. Moore unambiguously opined Mr. Gilbert sustained an aggravation ofhis left-knee injury "as a result ofrepetitive climbing into his truck as a driver for UPS." He further noted, "His meniscal tear on this side likely led to progression ofhis OA." Dr. Moore also opined the aggravation was "at least 51 percent cause" of his current need for a knee replacement and that his opinions are to a reasonable degree ofmedical certainty. In addition, while Dr. Moore's earlier treatment notes document Mr. Gilbert conveyed that "walking" exacerbates his pain, Dr. Raab's treatmentnote clearly states, "Hehas difficulty with stairs, which is challenging giventhe patient'sjob as a UPS driver, where he is constantly in and out ofhis vehicle loading and

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### unloading."
UPS takes issue with the phraseology ofMr. Gilbert's causation letter offering background on the case in a manner that, arguably, is sympathetic to Mr. 

### Gilbert. However, there is no evidence to suggest Dr. Moore relied on that language in the causation letter when stating his opinion. Therefore, at this time Mr. Gilbert has come forward with sufficient evidence from which this Court concludes he is likely to prevail at a hearing on the merits regardingthe compensability ofhis claim.
MedicalBenefits
The parties agreed Mr. Gilbert is entitled to medical benefits (the total knee replacement), whether itbepursuantto the settlement agreement of2012 orthis case. As Mr. Gilbert has shown a likelihood of success on the merits regarding whether he sustained a new, gradually-occurring injury, ordinarily this Court would order that UPS provide a panel ofphysicians pursuant to Tennessee Code Annotated section 50-6-204 (2015). However, it makes little sense to order a panel, given Mr. Gilbert's immediate need for a knee replacement, which Liberty Mutual previously authorized. Given Dr. Moore's familiarity with Mr. Gilbert's condition and history, he should remain the authorized treating physician, and thus his referral to Dr. Raab for the surgical procedure is approved and forthatpurpose. Dr. Raab is the authorizedtreating physician. TemporaryDisabilityBenefits andPenalties Mr. Gilbert additionally requested temporary disability benefits. The Appeals Board reiterated the longstanding criteria for such an award as follows: "An injured worker is eligible for temporary disability benefits if: (1) 

### the worker became disabled from working due to a compensable injury; (2) there is a causal connection between the injury and the inability to work; and (3) the worker established the duration ofthe period ofdisability." Jones v. Crencor Leasing and Sales, No. 2015-06-0332, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Tenn. Workers' Comp. App. Bd. Dec. 11, 2015), citingSimpson v. Satterfield, 564 S.W.2d 953 (Tenn. 1978). On the present record, the Court cannot order these benefits because neither Dr. Moore nor Dr. Raab restricted or removed Mr. Gilbert from work, thus he is not "disabled from working due to a compensable injury." The Court observes that Mr. Gilbert makes a logical argument that, since UPS knew his current circumstance and removed him from work for liability reasons, they should pay him temporarily disability benefits for this new injury. However, the Court is unaware ofany authority for such "regarded as" disabled that applies to the Workers' Compensation Law. The Court's ruling does not preclude Mr. Gilbert from obtaining the requisite expert opinions regarding the above-referenced criteria and entering such an award at a later date, should the partiesbeunable to reach an accord onthe question.

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### Finally, Mr. Gilbert seeks penalties under Tennessee Code Annotated section 50- 6-205(b)(3)(A) (2015), which states: [I]f an employer

... fails to pay, or untimely pays, temporary disability benefits within twenty (20) days after the employer has knowledge ofany disability that would qualify for benefits under this chapter, a workers' compensationjudge shall have the authority to assess againstthe employer

. . . acivil penalty in additionto the temporary disability benefits that are due tothe employee.
Mr. Gilbert additionally requested the Court amend the DCN so that he may be heard on the penalties issue. Tennessee Code Annotated section 50-6-239(b)(l) (2015) generally provides that only issues certified by the mediators with a DCN may be presented to the judge for adjudication. However, a judge may grant permission to present issues that have not been certified only upon finding: "The parties did not have knowledge ofthe issue prior to the issuance ofthe dispute certification and could not have known of the issue despite reasonable investigation; and

. . . [p]rohibiting presentation ofthe issue would result in substantial injustice to the petitioning party." Tenn. Code Ann.§ 50-6-239(b)(2)(A)-(B) (2015).
As explained at the expedited hearing hearing, under certain circumstances, the Court's authority to issue penalties is authorized by the Workers' Compensation Law. See 

### Tenn. Code Ann. §§ 50-6-205(b)(3)(A) (2015) and 50-6-118(d) (2015). The Court finds that, since its authority to exactpenalties is statutory, the mediator need not certify it as an issue for adjudication. Stated another way, the statute grants this Court inherent authority to issue penalties when the evidence supports it, regardless of whether the mediatorcertifiedpenalties as an issue for adjudication.
In the alternative, the Court finds that, should certification as an issue of entitlement to penalties be required, in this case Mr. Gilbert failed to satisfy the criteria set forth in section 239(b)(2). In particular, he checked his eligibility to temporary disability benefits as an issue on the PBD filed May 5, 2016. Temporary disability benefits are again checked as an issue on the June 2, 2016 DCN, more than twenty days after UPS' knowledge ofhis alleged disability. Mr. Gilbert is represented by competent counsel who
·should have known of his potential eligibility for penalties regarding temporary disability benefits before that time. Also, the Court cannot find that prohibitingpresentation ofthe issue wouldresult in substantial injustice to Mr. Gilbert. In light of the Court's finding that Mr. Gilbert failed to satisfy his burden regarding the criteria for temporary disability benefits, the Court rejects Mr. Gilbert's claim forpenalties underTennessee Code Annotated section 50-6-205(b)(3)(A) (2015) or 50-6-118(d) (2015). Likewise, the request for attorney's fees under Tennessee Code Annotated section 50-6-226(d) is denied because UPS did, in fact, authorize the requested

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### medicaltreatmentundertheprevious settlement. However, the Court is mindful ofMr. Bonee'stestimony that Mr. Gilbertreported the injury on May 2, 2016, but Mr. 

### Bonee did not complete a First Report ofInjury until June 22, 2016. Neither party introduced this form or a Notice ofDenial ofClaim for Compensation into evidence. The "Claims Handling Standards" state, "[E]mployers shall report verbally or in writing all known or reported accidents to their insurer within one working day of knowledge of injury." Tenn. Comp. R. & 

### Regs. 0800-2-14-.03(1) (2015). Further, "Decisions on workers' compensation insurance coverage and compensability shall be made within fifteen (15) days ofverbal or written notice ofaccident.

. .. Claimants and employers shall be notified ofthe decision ofcompensability within fifteen (15) days of verbal or written notice ofaccident." Tenn. Comp. R. & 

### Regs. 0800-2-14-.04(7) (2015). Also, "In addition to otherpenaltiesprovidedby applicable law and regulation, violations of any of the above rules shall be subject to enforcement by Commissioner of the Tennessee Department of Labor pursuant to TCA §50-6-419(c)." Tenn. Comp R. & 

### Regs. 0800-2-14-.08(1) (2015). Upon its issuance, a copy ofthis Orderwill be providedto the ComplianceUnit in accordance with Tennessee Compilation Rules and Regulations 0800-02-24-.03 (2015) The Courtreasonablybelievesthere mayhavebeen aviolation ofthe Bureau'srules.
ITIS, THEREFORE, ORDERED 

### as follows:
1. 

### UPS or its workers' compensation carrier shall provide Mr. Gilbert with medical treatment, includingthe knee-replacement surgery, as required by Tennessee Code Annotated section 50-6-204 (2015). Mr. Gilbert or the authorized medical providers shall furnish medical bills to UPS or its workers' compensation carrier forpromptpayment.
2. Mr. Gilbert's request for past-due and ongoing temporary disability benefits and related attorney's fees andpenalties is denied atthis time.
3. This matter is set for an Initial (Scheduling) Hearing on September 15, 2016, at 8:30a.m.
4. Unless interlocutory appeal ofthe Expedited Hearing Order is filed, compliance with this Ordermust occurno laterthan sevenbusiness days from the date ofentry ofthis Order as required by Tennessee Code Annotated section 50-6-239(d)(3) (2015). The Insurer or Self-Insured Employer must submit confirmation of compliance with this Order to the Bureau by email no later than the seventh business day after entry of this Order. Failure to submit the necessary confirmation within the period ofcompliance may result in a penalty assessment 9for non-compliance. For questions regarding compliance, please contact the Workers' Compensation Compliance Unit via email WCCompliance.Prograrn@tn.gov orby calling (615) 253-1471 or (615) 532-1309.
ENTEREDthisthe 12th dayofJuly,2016.

Initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Judge Kenneth M. Switzer, Court ofWorkers' Compensation Claims. You must call 615-532-9552 or toll-free at866-943-0025toparticipateintheInitialHearing.
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 yourfurther participation. Rightto Appeal:
Tennessee Law allows anypartywho disagrees withthis ExpeditedHearing Order to appeal the decisionto the Workers' Compensation Appeals Board. To file a Notice of Appeal, youmust:
1. Completethe enclosed form entitled: "ExpeditedHearingNotice ofAppeal."
2. File the completed form with the Court Clerk 

### within seven business days ofthe date the Workers' CompensationJudge enteredtheExpeditedHearing Order.
3. Serve a copy ofthe ExpeditedHearingNotice ofAppealuponthe opposingparty.
4. The appealing party is responsible for payment ofa filing fee in the amount of $75.00. Within ten calendar days after the filing of a notice ofappeal, payment mustbereceivedby check, money order, orcredit cardpayment. Payments canbe made in person at any Bureau office or by United States mail, hand-delivery, or other delivery service. Inthe alternative, the appealingpartymay file an Affidavit ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice ofAppeal ormustbe filed withinten calendar days thereafter. The Appeals Board will consider the Affidavit ofIndigency and issue an Order granting or denying
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### the request for a waiver of the filing fee as soon thereafter as is practicable. Failure to timely pay the filing fee or file the Affidavit of lndigency in accordance with this section shall result in dismissal of the appeal.


### 5. 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 ofhaving a transcript prepared by a licensed court reporter and filing it with the Court Clerk within ten calendar days of the filing of the Expedited Hearing Notice ofAppeal. Alternatively, the parties may file ajoint statement of the evidence within ten calendar days of the filing of the Expedited Hearing Notice of Appeal. The statement of the evidence must convey a complete and accurate account of what transpired in the Court of Workers' Compensation Claims and must be approved by the workers' compensation judge before the record is submittedtothe Clerkofthe Appeals Board.
6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file such position statementwiththe Court Clerkwithin five business days ofthe expiration ofthe time to file a transcript or statement of the evidence, specifying the issues presented for review and including any argument in support thereof. A party opposing the appeal shall file a response, if any, with the Court Clerkwithin five business days ofthe filing ofthe appellant's position statement. All position statements pertaining to an appeal of an interlocutory order should include: (1) a statement summarizing the facts ofthe case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition ofthe case as a result ofthe expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, orotherauthority.

11APPENDIX


### Exhibits: 1. Medical Records 2. Affidavit ofThomas Gilbert 3. Affidavit ofSarahMoore A. JointPetition and SettlementAgreement B. Affidavit ofThomas Gilbert C. Agreed Order E. Moore emails4 

### 4. Affidavit ofErikRobling 5. Affidavit ofDougGrissom 6. Wage Statement 7. Causation letter 8. UPS PhysicalDemandAssessment 9. Adjusterfax to Dr. Raab (Admitted for identificationpurposes only) 10.Telephone record 11.Counsel's notice ofinjuryto UPS
Technicalrecord: 5 

### 1. Petitionfor BenefitDetermination, May 5, 2016 2. Dispute CertificationNotice, June 2, 2016 3. Request for ExpeditedHearing, June 10, 2016 4. Position Statement, InjuredWorker, June 10, 2016 5. Permissionto AddPenaltiesto Issues to beHeardbythe Court, June 23, 2016 6. Petition for Penalties, June 23, 2016 7. Oppositionto Motion for ExpeditedHearing, June 24, 2016 8. Opposition to the Motion Filed by Employee titled "Permission to Add Penalties toIssues to be Heardbythe Court," andExhibits, June 30, 2016 9. Supplemental Pre-HearingMemorandum ofEmployerand Carrier, July 4, 2016 10.PlaintiffsResponseto Defense SupplementalMemorandum, July 5, 2016

4 The Affidavit as filed additionally contained medical records marked as Exhibit D, which the Court extracted because they are already in evidence as Exhibit 1.

5 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.

12CERTIFICATE OFSERVICE
I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients by the following methods ofservice on this the 12th day ofJuly, 2016.

Name Certified Via Mail Fax ConstanceMann, Employee's Counsel DavidHooper, Employer's Counsel ComplianceUnit Via Service sentto: Email X cmannlaw@msn
.com
X dhooger@ho1:merzinn

.com
X WCComoliance.Program@tn

.gov

Penny Shrum CourtofWor rs' Compensation Claims WC.CourtClerk@tn.gov

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