TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION APPEALS BOARD

Mitchel Helgerson ) Docket No. 2014-03-0023

)

v. )

) State File No. 65382-2014

Packer Sanitation Services, Inc. )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the 

referenced case was sent to the following recipients by the following methods of service 

on this the 23rd day of September, 2015.

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Fax 

Number

Via 

Email

Email Address

D. David Sexton X dsexton@sextonandwykoff.com

megan@sextonandwykoff.com

Charles W. Gilbreath II X cgilbreath@noogalaw.com

Pamela B. Johnson, 

Judge

X Via Electronic Mail

Kenneth M. Switzer, 

Chief Judge

X Via Electronic Mail

Penny Shrum, Clerk, 

Court of Workers’ 

Compensation Claims

X Penny.Patterson-Shrum@tn.gov

 

Matthew Salyer

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-1606

Electronic Mail: Matthew.Salyer@tn.gov
Mitchel Helgerson 

v. 

Packer Sanitation Services, Inc. 

Appeal from the Court of Workers' 

Compensation Claims 

Pamela B. Johnson, Judge 

) Docket No. 2014

03

0023 

) ) 

) State File No. 65382-2014 

) 

) ) ) ) ) 

Affirmed and Remanded- Filed September 23, 2015 

TENNESSEE 

WORKERS' COMPENSATION 

APPEALS BOARD 

Time: 7:40 A.M. 

The employee reported that his right knee popped and he felt immediate pain when he 

stepped down from a stool at work. The employer initially authorized medical treatment, 

but denied the claim approximately five weeks later. Following an expedited hearing, the 

trial court issued an interlocutory order for medical benefits requiring the employer to 

provide a panel of orthopedic physicians to the employee. On appeal, the employer 

asserts that the employee is not entitled to additional medical benefits since he failed to 

satisfy his burden of proof as to whether the knee condition arose primarily out of and in 

the course and scope of employment. The employer additionally contests the trial court's 

credibility determinations. Having carefully reviewed the record, we affirm the trial 

court's judgment and remand the case for any further proceedings as may be necessary. 

Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge 

Marshall L. Davidson, III, and Judge Timothy W. Conner joined. 

Charles W. Gilbreath, II, Chattanooga, Tennessee, for the employer-appellant, Packer 

Sanitation Services, Inc. 

D. David Sexton, Knoxville, Tennessee, for the employee-appellee, Mitchel Helgerson 

1 
On August 8, 2014, Employee reported for work at 10:30 p.m. Approximately 

three hours later, which was soon after midnight on August 9, 2014, Employee was 

cleaning overhead pipes that ran along the ceiling, which required him to use elevated 

grates, a ladder, or a step stool. Employee reported that while stepping down from an 

eighteen-inch stool, he slipped "a little bit" due to food residue on the floor, twisted, and 

felt a pop in his right knee. Although acknowledging a 2002 right knee injury, he denied 

having any problems with his right leg or knee immediately prior to the August 9, 2014 

incident. 

Following the incident, Employee ''took a break," during which he called his 

father and asked him to bring a knee brace to the work site. Employee alleges that, while 

on break, he informed a supervisor, Adam Welch, that he had hurt his knee. He did not 

seek immediate medical attention because he thought he only had a sprain, and he hoped 

his symptoms would abate. Although Employee worked the following night, he called in 

the next two nights and advised his direct supervisor, Jason Sharp, that he was unable to 

work. 

When Employee returned to work on the evening of August 13, 2014, he spoke to 

Mr. Sharp and asked that a workers' compensation claim be initiated. He and Mr. Sharp 

then participated in a teleconference with Medcor, a company that accepts and processes 

reports of work injuries on behalf of Employer. During this call, Employee described the 

incident and his symptoms. He also acknowledged a prior injury involving the same 

knee that occurred approximately twelve years earlier. The Medcor representative 

referred Employee to Knoxville Medical Center without offering Employee a choice of 

physicians. 

Employee was evaluated and treated on four occasions by Dr. J. Donald King, Jr. 

The records document that Employee was initially seen on August 14, 2014, at which 

time he described an August 9, 2014 work-related injury when "he stepped off a step 

stool and twisted his [right] knee and felt it pop." Dr. King prescribed medication and 

recommended that Employee begin physical therapy and continue icing his knee and 

wearing the "private knee brace." The diagnoses in the initial report included ( 1) 

"[ d]erangement of anterior hom of medial meniscus," (2) right leg effusion of joint, and 

(3) "[s]prain of medial collateral ligament of knee." Dr. King imposed work restrictions 

2 
Employee returned to Dr. King. The report of the visit states that Employee "had an 

episode in [physical therapy] yesterday with weight shifts and popping catch on medial 

aspect of [right] knee causing increased pain." Employee reported an increase in pain 

and other symptoms. Dr. King's report noted that Employee's range of motion decreased 

and that his "gait has decreased [with] more pain on ambulation." Dr. King continued 

physical therapy, medication and icing, and he recommended an MRI study of the right 

knee, which was completed on August 30, 2014. 

The August 30, 2014 MRI revealed (1) a large bucket handle tear of the medial 

meniscus, (2) a one centimeter cyst, "ganglion versus parameniscal cyst adjacent to the 

anterior root medial meniscus," (3) a "[h]igh-grade ACL tear" that the report states 

"[s]uspect chronic," (4) "[s]mall to moderate joint effusion," and (5) "[m]inimal 

chondromalacia." Employee returned to Dr. King on September 5, 2014, reporting no 

improvement. Dr. King reviewed the results of the MRI and recommended that 

Employee continue his program of conservative care. Dr. King also referred Employee 

for orthopedic consultation. 

On September 17,2014, Employer completed a "Notice of Change or Termination 

of Compensation Benefits" form and a "Notice of Controversy" form indicating that 

Employee was notified on September 15, 2014 that benefits were terminated. The forms 

state the reason for the termination of benefits and the matter in dispute as "Employer's 

[sic] report of mechanism of injury is inconsistent with the previous report to supervisor 

and injuries as identified by the authorized doctor." 

On October 28, 2014, Employee filed a petition for benefit determination 

requesting temporary disability benefits and medical benefits. On June 1, 2015, 

Employee requested an expedited hearing and asked that the trial court issue a ruling 

based on a record review without an evidentiary hearing. Employer filed a motion to 

quash the request, asserting it did not have "the vast majority of the medical records from 

[Employee's] prior knee injury." Employer filed a separate response in opposition to 

Employee's request for expedited hearing asking the court to hold an in-person 

evidentiary hearing if the court did not grant its motion to quash. On July 2, 2015, the 

trial court denied the motion to quash and scheduled an in-person evidentiary hearing for 

July 31, 2015. 

3 
Employer timely filed a notice of appeal on August 31, 2015, asserting (1) 

Employee did not offer medical proof that his injury more likely than not occurred in the 

course and scope of his employment, (2) the trial court erred in determining that 

Employee was credible, (3) Employee voluntarily resigned his employment, and (4) the 

trial court erred in failing to determine which of two First Reports of Injury is controlling. 

The record was received by the Clerk of the Appeals Board on September 14, 2015. 

Standard of Review 

The standard of review to be applied by the Appeals Board in reviewing a trial 

court's decision is statutorily mandated and limited in scope. Specifically, "[t]here shall 

be a presumption that the fmdings and conclusions of the workers' compensation judge 

are correct, unless the preponderance of the evidence is otherwise." Tenn. Code Ann. § 

50-6-239(c)(7) (2014). The limited circumstances warranting reversal or modification of 

a trial court's decision are specified in the statute: 

The workers' compensation appeals board may reverse or modify and 

remand the decision of the workers' compensation judge if the rights of any 

party have been prejudiced because findings, inferences, conclusions, or 

decisions of a workers' compensation judge: 

(A) Violate constitutional or statutory provisions; (B) Exceed the statutory authority of the workers' compensation judge; 

(C) Do not comply with lawful procedure; 

(D) Are arbitrary, capricious, characterized by abuse of discretion, or clearly 

an unwarranted exercise of discretion; or 

(E) Are not supported by evidence that is both substantial and material in the 

light of the entire record. 

Tenn. Code Ann. § 50-6-217(a)(3) (2015). 

In applying the standard set forth in subparagraph (E) above, courts have 

construed "substantial and material" evidence to mean "such relevant evidence as a 

reasonable mind might accept to support a rational conclusion and such as to furnish a reasonably sound basis for the action under consideration." Clay Cnty. Manor, Inc. v. 

4 
The primary issue on appeal is whether Employee presented sufficient evidence to 

support the trial court's order for medical benefits requiring Employer to provide a panel 

of orthopedic physicians as recommended by the authorized treating physician, Dr. King. 

Employer also raises a credibility issue, asserting the trial court erred in finding 

Employee credible "in the face of testimony, records, and recordings that contradicted his 

version of the events." Additionally, Employer presents as issues whether Employee 

voluntarily resigned his employment by refusing to comply with Employer's requirement 

that he return a Family Medical Leave Act form within five days, and whether the trial 

court erred in failing to determine which of two First Reports of Injury controls in the 

case. We decline to address the latter two issues as they are immaterial to the trial court's 

August 20, 2015 order for medical benefits. 

The Award of Medical Benefits 

Citing Tennessee Code Annotated section 50-6-239(c), Employer asserts that an 

employee is not entitled to medical benefits unless the employee proves to a reasonable 

degree of medical certainty that the injury at issue primarily arose out of and in the course 

and scope of the employment. Relying on the trial court's finding that "Dr. King, 

however, does not provide an opinion on causation to allow this Court to determine 

whether [Employee's] right-knee injury of August 9, 2014, arose primarily out of and in 

the course and scope of his employment," Employer asserts that Employee's evidence 

was insufficient to establish a right to medical benefits. We find no merit in Employer's 

position. 

Employer overlooks the applicable standard for a trial court to enter an 

interlocutory order concerning the provision of temporary disability or medical benefits 

as is stated in the trial court's August 20, 2015 order. "[A]n employee need not prove 

each and every element of his or her claim by a preponderance of the evidence at an 

expedited hearing to be entitled to temporary disability or medical benefits, but must 

instead present evidence sufficient for the trial court to conclude that the employee would 

likely prevail at a hearing on the merits in accordance with the express terms of 

[Tennessee Code Annotated] section 50-6-239(d)(l)." McCord v. Advantage Human 

Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. Bd. LEXIS 6, at *7-8, 9 (Tenn. 

Workers' Comp. App. Bd. Mar. 27, 2015). Here, the trial court expressly determined that 

while Employee has not proven by a preponderance of the evidence that he suffered an 

5 
Mr. Sharp.

 As the Tennessee Supreme Court has observed many times, reviewing 

courts must conduct an in-depth examination of the trial court's factual findings and 

conclusions. Wilhelm v. Krogers, 235 S.W.3d 122, 126 (Tenn. 2007). As noted above, 

our review of a trial court's order is governed by Tennessee Code Annotated sections 50-

6-217(a)(3) (2015) and 50-6-239(c)(7) (2014). Section 50-6-239(c)(7) provides a 

presumption "that the findings and conclusions of the workers' compensation judge are 

correct, unless the preponderance of the evidence is otherwise." When the trial court has 

seen and heard the witnesses, considerable deference must be afforded the trial court's 

factual findings. Tyron v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008). No similar 

deference need be afforded the trial court's fmdings based on documentary evidence. 

Glisson v. Mohon Int'l Inc., 185 S.W.3d 348, 353 (Tenn. 2006). Despite the deferential 

standard of review for live testimony, we must still assess independently where the 

preponderance of the evidence lies. See Tenn. Code Ann.§ 50-6-239(c)(7). 

After independently reviewing the record and guided by the above principles, we 

conclude that the evidence does not preponderate against the trial court's findings with 

respect to Employee's credibility. The trial court heard the testimony of Employee and 

his supervisor, Mr. Sharp. Additionally, the trial court heard the recorded telephone 

conversation involving Employee, his supervisor and the Medcor representative. The 

trial court expressly found Employee to be credible, stating that "[a]ny inconsistencies in 

his report of the August 9, 2014 work incident were minor and caused by the fact that the 

work incident occurred during an overnight shift, which encompassed two calendar 

days." Moreover, as stated by the trial court, "[t]he medical records of the authorized 

treating physician, Dr. King, support [Employee's] description of the work incident." 

Conclusion 

For the foregoing reasons, the trial court's judgment is affirmed and the case is 

remanded for such additional proceedings as may be necessary. 

David F. Hensley, Judge 

Workers' Compensatio Appeals Board 

6