# TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSAT I ON 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.govTENNESSEEBUREAUOFWORKERS'COMPENSATIONWORKERS'COMPENSATIONAPPEALSBOARDMitchelHelgersonv.PackerSanitationServices,Inc.AppealfromtheCourtofWorkers'CompensationClaimsPamelaB.Johnson,Judge)DocketNo.2014-03-0023)))StateFileNo.65382-2014))))))AffirmedandRemanded-FiledSeptember23,2015FILEDSeptember23,2015TENNESSEEWORKERS'COMPENSATIONAPPEALSBOARDTime:7:40A.M.Theemployeereportedthathisrightkneepoppedandhefeltimmediatepainwhenhesteppeddownfromastoolatwork.Theemployerinitiallyauthorizedmedicaltreatment,butdeniedtheclaimapproximatelyfiveweekslater.Followinganexpeditedhearing,thetrialcourtissuedaninterlocutoryorderformedicalbenefitsrequiringtheemployertoprovideapaneloforthopedicphysicianstotheemployee.Onappeal,theemployerassertsthattheemployeeisnotentitledtoadditionalmedicalbenefitssincehefailedtosatisfyhisburdenofproofastowhetherthekneeconditionaroseprimarilyoutofandinthecourseandscopeofemployment.Theemployeradditionallyconteststhetrialcourt'scredibilitydeterminations.Havingcarefullyreviewedtherecord,weaffirmthetrialcourt'sjudgmentandremandthecaseforanyfurtherproceedingsasmaybenecessary.JudgeDavidF.HensleydeliveredtheopinionoftheAppealsBoard,inwhichJudgeMarshallL.Davidson,III,andJudgeTimothyW.Connerjoined.CharlesW.Gilbreath,II,Chattanooga,Tennessee,fortheemployer-appellant,PackerSanitationServices,Inc.D.DavidSexton,Knoxville,Tennessee,fortheemployee-appellee,MitchelHelgerson1

# Factual

and Procedural Background 

# Mitchel Helgerson ("Employee")

is

a thirty-seven-year-old

resident

of Knox County, Tennessee.

He

was employed

as

a machine

cleaner

by Packer Sanitation Services,

Inc. ("Employer"),

in July 2013, before

being promoted

to leader

in May 2014. Employer

provides

cleaning

services

for industrial

plants,

and Employee

was assigned

to a food production

facility

in Knoxville,

Tennessee. 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 2limitingspecifiedactivitiestoamaximumofonehourperday.Employeraccommodatedtherestrictions,andEmployeecontinuedworkingmodifiedduties.Employee'ssecondvisitwithDr.KingoccurredonAugust25,2014,atwhichtimeEmployeereportedthathissymptoms"haveremainedthesame."Dr.KingcontinuedphysicaltherapyandthemedicationandrecommendedEmployeecontinueicinghisknee.HealsocontinuedEmployee'sworkrestrictions.OnAugust28,2014,EmployeereturnedtoDr.King.ThereportofthevisitstatesthatEmployee"hadanepisodein[physicaltherapy]yesterdaywithweightshiftsandpoppingcatchonmedialaspectof[right]kneecausing increasedpain."Employeereportedanincreaseinpainandothersymptoms.Dr.King'sreportnotedthatEmployee'srangeofmotiondecreasedandthathis"gaithasdecreased[with]morepainonambulation."Dr.Kingcontinuedphysicaltherapy,medicationandicing,andherecommendedanMRIstudyoftherightknee,whichwascompletedonAugust30,2014.TheAugust30,2014MRIrevealed(1)alargebuckethandletearofthemedialmeniscus,(2)aonecentimetercyst,"ganglionversusparameniscalcystadjacenttotheanteriorrootmedialmeniscus,"(3)a"[h]igh-gradeACLtear"thatthereportstates"[s]uspectchronic,"(4)"[s]malltomoderatejointeffusion,"and(5)"[m]inimalchondromalacia."EmployeereturnedtoDr.KingonSeptember5,2014,reportingnoimprovement.Dr.KingreviewedtheresultsoftheMRIandrecommendedthatEmployeecontinuehisprogramofconservativecare.Dr.KingalsoreferredEmployeefororthopedicconsultation.OnSeptember17,2014,Employercompleteda"NoticeofChangeorTerminationofCompensationBenefits"formanda"NoticeofControversy"formindicatingthatEmployeewasnotifiedonSeptember15,2014thatbenefitswereterminated.Theformsstatethereasonfortheterminationofbenefitsandthematterindisputeas"Employer's[sic]reportofmechanismofinjuryisinconsistentwiththepreviousreporttosupervisorandinjuriesasidentifiedbytheauthorizeddoctor."OnOctober28,2014,Employeefiledapetitionforbenefitdeterminationrequestingtemporarydisabilitybenefitsandmedicalbenefits.OnJune1,2015,Employeerequestedanexpeditedhearingandaskedthatthetrialcourtissuearulingbasedonarecordreviewwithoutanevidentiaryhearing.Employerfiledamotiontoquashtherequest,assertingitdidnothave"thevastmajorityofthemedicalrecordsfrom[Employee's]priorkneeinjury."EmployerfiledaseparateresponseinoppositiontoEmployee'srequestforexpeditedhearingaskingthecourttoholdanin-personevidentiaryhearingifthecourtdidnotgrantitsmotiontoquash.OnJuly2,2015,thetrialcourtdeniedthemotiontoquashandscheduledanin-personevidentiaryhearingforJuly31,2015.3Employeeandhissupervisor,Mr.Sharp,testifiedatthehearing,offeringdifferingaccountsofwhenandhowEmployeereportedhisinjury,whetherEmployeeattributedhiscomplaintstoanoldinjury,andthecircumstancesofEmployee'stermination.OnAugust20,2015,thetrialcourtissueditsExpeditedHearingOrderforMedicalBenefitsorderingEmployertoprovideEmployee"apaneloforthopedicphysiciansfromwhichhemayselectaphysicianforevaluationandtreatmentofanywork-relatedinjurypursuanttoTennesseeCodeAnnotatedsection50-6-204."EmployertimelyfiledanoticeofappealonAugust31,2015,asserting(1)Employeedidnotoffermedicalproofthathisinjurymorelikelythannotoccurredinthecourseandscopeofhisemployment,(2)thetrialcourterredindeterminingthatEmployeewascredible,(3)Employeevoluntarilyresignedhisemployment,and(4)thetrialcourterredinfailingtodeterminewhichoftwoFirstReportsofInjuryiscontrolling.TherecordwasreceivedbytheClerkoftheAppealsBoardonSeptember14,2015.StandardofReviewThestandardofreviewtobeappliedbytheAppealsBoardinreviewingatrialcourt'sdecisionisstatutorilymandatedandlimitedinscope.Specifically,"[t]hereshallbeapresumptionthatthefmdingsandconclusionsoftheworkers'compensationjudgearecorrect,unlessthepreponderanceoftheevidenceisotherwise."Tenn.CodeAnn.§50-6-239(c)(7)(2014).Thelimitedcircumstanceswarrantingreversalormodificationofatrialcourt'sdecisionarespecifiedinthestatute:Theworkers'compensationappealsboardmayreverseormodifyandremandthedecisionoftheworkers'compensationjudgeiftherightsofanypartyhavebeenprejudicedbecausefindings,inferences,conclusions,ordecisionsofaworkers'compensationjudge:(A)Violateconstitutionalorstatutoryprovisions;(B)Exceedthestatutoryauthorityoftheworkers'compensationjudge;(C)Donotcomplywithlawfulprocedure;(D)Arearbitrary,capricious,characterizedbyabuseofdiscretion,orclearlyanunwarrantedexerciseofdiscretion;or(E)Arenotsupportedbyevidencethatisbothsubstantialandmaterialinthelightoftheentirerecord.Tenn.CodeAnn.§50-6-217(a)(3)(2015).Inapplyingthestandardsetforthinsubparagraph(E)above,courtshaveconstrued"substantialandmaterial"evidencetomean"suchrelevantevidenceasareasonablemindmightaccepttosupportarationalconclusionandsuchastofurnishareasonablysoundbasisfortheactionunderconsideration."ClayCnty.Manor,Inc.v.4State,Dep'tofHealth&Env't,849S.W.2d755,759(Tenn.1993)(quotingSouthernRy.Co.v.StateBd.ofEqualization,682S.W.2d196,199(Tenn.1984)).Likeothercourtsapplyingthestandardembodiedinsection50-6-217(a)(3),wewillnotdisturbthedecisionofthetrialcourtabsentthelimitedcircumstancesidentifiedinthestatute.AnalysisTheprimaryissueonappealiswhetherEmployeepresentedsufficientevidencetosupportthetrialcourt'sorderformedicalbenefitsrequiringEmployertoprovideapaneloforthopedicphysiciansasrecommendedbytheauthorizedtreatingphysician,Dr.King.Employeralsoraisesacredibilityissue,assertingthetrialcourterredinfindingEmployeecredible"inthefaceoftestimony,records,andrecordingsthatcontradictedhisversionoftheevents."Additionally,EmployerpresentsasissueswhetherEmployeevoluntarilyresignedhisemploymentbyrefusingtocomplywithEmployer'srequirementthathereturnaFamilyMedicalLeaveActformwithinfivedays,andwhetherthetrialcourterredinfailingtodeterminewhichoftwoFirstReportsofInjurycontrolsinthecase.Wedeclinetoaddressthelattertwoissuesastheyareimmaterialtothetrialcourt'sAugust20,2015orderformedicalbenefits.TheAwardofMedicalBenefitsCitingTennesseeCodeAnnotatedsection50-6-239(c),Employerassertsthatanemployeeisnotentitledtomedicalbenefitsunlesstheemployee provestoareasonabledegreeofmedicalcertaintythattheinjuryatissueprimarilyaroseoutofandinthecourseandscopeoftheemployment.Relyingonthetrialcourt'sfindingthat"Dr.King,however,doesnotprovideanopiniononcausationtoallowthisCourttodeterminewhether[Employee's]right-kneeinjuryofAugust9,2014,aroseprimarilyoutofandinthecourseandscopeofhisemployment,"EmployerassertsthatEmployee'sevidencewasinsufficienttoestablisharighttomedicalbenefits.WefindnomeritinEmployer'sposition.Employeroverlookstheapplicablestandardforatrialcourttoenteraninterlocutoryorderconcerningtheprovisionoftemporarydisabilityormedicalbenefitsasisstatedinthetrialcourt'sAugust20,2015order."[A]nemployeeneednotproveeachandeveryelementofhisorherclaimbyapreponderanceoftheevidenceatanexpeditedhearingtobeentitledtotemporarydisabilityormedicalbenefits,butmustinsteadpresentevidencesufficientforthetrialcourttoconcludethattheemployeewouldlikelyprevailatahearingonthemeritsinaccordancewiththeexpresstermsof[TennesseeCodeAnnotated]section50-6-239(d)(l)."McCordv.AdvantageHumanResourcing,No.2014-06-0063,2015TNWrk.Comp.Bd.LEXIS6,at*7-8,9(Tenn.Workers'Comp.App.Bd.Mar.27,2015).Here,thetrialcourtexpresslydeterminedthatwhileEmployeehasnotprovenbyapreponderanceoftheevidencethathesufferedan5injury

arising primarily

out

of and

in the course

and scope

of his employment,

"he

has shown

that

he

is likely

to prevail

at

a hearing

on the merits." Credibility Employer

also asserts

that

the

trial

court

erred

in finding Employee

credible. Employer

requests

that

we fmd Employee

"to

be incredible,

and credit

the testimony

of 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