IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT JACKSON 

ROBERT KIMERY 

Employee, 

v. 

TRILLIUM STAFFING 

Employer, 

And 

CORVEL ENTERPRISE COMPANY 

Insurance Carrier. 

) Docket No.: 2015-08-0166 

) 

) State File No.: 91670-2014 

) 

) Judge Amber E. Luttrell 

) 

) 

) 

) 

) 

) 

EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS AND 

TEMPORARY DISABILITY BENEFITS 

THIS CAUSE came before the undersigned Workers' Compensation Judge upon 

the Request for Expedited Hearing (REH) filed by the employee, Robert Kimery, 

pursuant to Tennessee Code Annotated section 50-6-239 (2014). Mr. Kimery seeks 

medical benefits and temporary disability benefits for a left-knee injury. The central issue 

for determination is whether Mr. Kimery presented sufficient medical proof of a knee 

injury arising primarily out of and in the course and scope of employment. If the Court 

finds Mr. Kimery sustained a compensable injury, the extent of medical and temporary 

benefits is at issue. For the reasons set forth below, the Court finds Mr. Kimery did not 

carry his burden of proving entitlement to the requested benefits at this time. 

History of Claim 

Mr. Kimery is a forty-one year-old resident of Tipton County, Tennessee. He 

worked for Trillium Staffing, 1 

an industrial staffing service, as a journeyman pipefitter. 

1 Mr. Kimery initially testified he worked for Industrial Mechanical Contractors (IMC) in Memphis, Tennessee 

through Trillium Staffing. He later testified he worked for Trillium Staffing. The testimony indicates the immediate 

onsite supervisors were employees of Industrial Mechanical Contractors. The Court is unclear of the relationship 

between these two companies. However, the pleadings filed indicate the employer is Trillium Staffing, and the 

parties did not raise the identity of the proper employer as a disputed issue in the Dispute Certification Notice. 
On October 22, 2014, Mr. Kimery worked a shutdown project at DuPont Protein 

Technologies in Memphis, Tennessee. On that date, he and a coworker, "Nathan," carried 

a twenty-foot long stainless steel pipe when Nathan dropped his end of the pipe, causing 

Mr. Kimery to fall to the ground. Mr. Kimery's hands and knees hit the floor. The onsite 

project manager, John Comacho, assisted Mr. Kimery off the floor. Mr. Kimery 

experienced difficulty walking the remainder of the day. Mr. Kimery testified he could 

not move the next morning; therefore, he called Mr. Comacho and advised that he would 

seek medical attention. 

On October 23, 2014, Mr. Kimery presented to Ashley Pennington, NP at 

Somerville Medical Clinic. (Ex. 1 at 5.) He gave Ms. Pennington a history of falling at 

work, injuring his left knee. He complained it hurt to walk. He described the injury by 

stating his left knee twisted when he fell on it yesterday. Ms. Pennington diagnosed a 

left-knee sprain, prescribed medication, and recommended a splint for Mr. Kimery's 

knee. She advised if he did not improve, she would order an MRI of the knee. Mr. 

Kimery wrapped his knee with an ACE bandage and returned to work the next day. He 

spoke to the job supervisor and safety director for IMC, Vince Ciancioso, who advised 

that he could not let Mr. Kimery work without a doctor's release. The next medical 

record indicates Mr. Kimery had an MRI of his left knee on October 31, 2014, which 

revealed a medial meniscus tear. Following the MRI, Mr. Ciancioso advised Mr. Kimery 

to contact "Brandon" at Trillium. 

Mr. Kimery contacted Brandon, the recruiter at Trillium, and reported the work 

injury to his knee. He informed Brandon that his supervisor would not let him return to 

work until a doctor released him. Trillium offered Mr. Kimery a panel of orthopedic 

physicians from which he selected Dr. Riley Jones. (Ex. 3.) Trillium first instructed Mr. 

Kimery to seek treatment at Concentra Medical Center, which evaluated him. 

On November 11, 2014, the Concentra doctor diagnosed a left-knee medial 

meniscus tear and large joint effusion. 

Mr. Kimery next presented to Dr. Jones at Memphis Orthopedic Group on 

November 21, 2014. Upon examination and review of the MRI results, Dr. Jones 

confirmed the medial meniscus tear diagnosis and scheduled outpatient surgery on 

December 3, 2014. Dr. Jones took Mr. Kimery off work and advised him to return for 

follow up after surgery. 

The day prior to Mr. Kimery's surgery, the workers' compensation carrier 

cancelled the surgery pending further investigation of the claim. The carrier filed a Notice 

of Denial and Notice of Controversy on December 9, 2014, stating, "Employee did not 

suffer an injury compensable under the Tennessee Workers' Compensation Act." (Ex. 3.) 

Trillium requested and obtained Mr. Kimery's complete records from Somerville 

2 
Medical Center, his PCP, which revealed pre-existing swelling in Mr. Kimery's left knee. 

The records further indicated Mr. Kimery presented to Ms. Pennington on October 4, 

2013, reporting swelling and tightness in the left knee and pain in both knees. Ms. 

Pennington noted, "[left] knee swollen and tight, worse over last couple of days." On 

examination, Ms. Pennington observed, "left knee swelling, tender patellar tendon fluid 

pocket." Ms. Pennington diagnosed left-knee pain, left-knee swelling, and high blood 

pressure. On October 6, 2014, two weeks prior to his work injury, Mr. Kimery returned to 

Ms. Pennington reporting left-leg swelling, shortness of breath, and cough. Ms. 

Pennington diagnosed uncontrolled high blood pressure and left-leg swelling. 

Trillium sent Ms. Pennington's records to Dr. Jones for review and requested his 

opm10n on medical causation. By letter dated June 10, 2015, Dr. Jones opined the 

following: 

It is apparent that the patient has documented swelling of the left knee and 

pain as far back as October 6, 2014. This is two weeks prior to when he 

said he had his injury. As such, it appears that he had a preexisting problem 

which he did not relate to us. From the history, it appears he well could 

have had a tom meniscus that was giving him trouble prior to any injury on 

the job. Based on the fact that he did not inform us about this treatment I 

would consider it higher than a grade of 51% that this is not work related. 

Mr. Kimery testified he sought treatment from Ms. Pennington on October 6, 

2014, for his uncontrolled high blood pressure. His wife expressed concern that he might 

have a blood clot in his leg prompting him to seek medical attention. Mr. Kimery denied 

any prior injury to his left knee and testified he had no real issues with his knee prior to 

the work injury. 

Following Trillium's denial of the claim, Mr. Kimery sought no further treatment 

for his left-knee injury and did not return to work for Trillium? In late July 2015, Mr. 

Kimery began working for Tradesman International, another industrial staffing company, 

earning twenty dollars per hour as a millwright. Mr. Kimery described the job duties of a 

millwright as a much less physical job than the job duties of a pipefitter. Prior to working 

for Tradesman International, Mr. Kimery performed one small painting job for a friend 

from church and earned three hundred dollars. 

Mr. Kimery filed a Petition for Benefit Determination on May 29, 2015, seeking 

medical and temporary disability benefits. (T.R. 1.) The parties did not resolve the 

disputed issues through mediation; therefore, the Mediation Specialist filed the Dispute 

Certification Notice on July 21, 2015. 

2 The record is unclear when Mr. Kimery was separated from his employment at Trillium. 

3 
Findings of Fact and Conclusions of Law 

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). The employee in a workers' compensation claim 

has the burden of proof on all essential elements of a claim. Tindall v. Waring Park 

Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); Scott v. Integrity Staffing Solutions, No. 2015-

01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. 

Bd. Aug. 18, 20 15). An employee need not prove every element of his or her 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). At an expedited 

hearing, an employee has the burden to come forward with sufficient evidence from 

which the trial court can determine that the employee is likely to prevail at a hearing on 

the merits. !d. 

To be compensable under the workers' compensation statutes, an injury must arise 

primarily out of and occur in the course and scope of the employment. Tenn. Code Ann. 

§ 50-6-1 02( 13) (20 14 ). The term "injury" is defined as "an injury by 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." Tenn. Code Ann. § 50-6-102(13)(A) (2014). Moreover, "[t]he opinion of 

the treating physician, selected by the employee from the employer's designated panel of 

physicians . . . shall be presumed correct on the issue of causation but this presumption 

shall be rebuttable by a preponderance of the evidence." Tenn. Code Ann. § 50-6-

1 02(13)(E)(20 14). 

The statutory requirements that an injury arise out of and in the course of the 

employment are not synonymous "although both elements exist to ensure a work 

connection to the injury for which the employee seeks benefits." Blankenship v. Am. 

Ordnance Sys., 164 S.W.3d 350, 354 (Tenn. 2005). 3 An injury occurs in the course of 

employment if it takes place while the employee was performing a duty he or she was 

employed to perform. Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. Workers' Comp. 

Panel 1993). Thus, the course of employment requirement focuses on the time, place, and 

3 "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, that it relied on specific 

statutory language no longer contained in the Workers' Compensation Law, and/or that it relied on an analysis that 

has since been addressed by the general assembly through statutory amendments." McCord v. Advantage Human 

Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. 

Bd. Mar. 27, 2015). 

4 
circumstances of the injury. Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314, 318 

(Tenn. 2005). By contrast, arising out of employment refers to causation. Reeser v. 

Yellow Freight Sys., Inc., 938 S.W.2d 690, 692 (Tenn. 1997). An injury arises out of 

employment when there is a causal connection between the conditions under which the 

work is required to be performed and the resulting injury. Fritts v. Safety Nat'! Cas. 

Corp., 163 S.W.3d 673, 678 (Tenn. 2005). Put another way, an injury arises out of 

employment when it "has a rational, causal connection to the work." Braden v. Sears, 

Roebuck & Co., 833 S.W.2d 496, 498 (Tenn. 1992). 

In this case, the Court finds that Mr. Kimery appeared calm, at ease, self-assured, 

steady, confident, forthcoming, reasonable and honest, which characteristics, according to 

the Tennessee Supreme Court, are indicia of reliability. See Kelly v. Kelly, 445 S.W.3d 

685, 694-695 (Tenn. 2014). Mr. Kimery credibly testified that he was at work on October 

22, 2014, carrying a pipe with a coworker when he fell to the ground on his hands and 

knees, injuring his left knee. Trillium did not refute his testimony. Therefore, the injury 

occurred in the course of Mr. Kimery's employment. 

Thus, the determinative issue becomes whether Mr. Kimery's injury arose 

primarily out of his employment. In support of his request for medical benefits, Mr. 

Kimery offered into evidence the medical records from Ms. Pennington immediately 

following the work injury that reflect he reported a history of a specific work injury to his 

left knee on October 22, 2014. However, there are additional records revealing Mr. 

Kimery reported symptoms in his left knee to Ms. Pennington prior to the work injury. 

Mr. Kimery saw Ms. Pennington on October 6, 2014, merely two weeks prior to his work 

injury, reporting swelling in his left knee. Mr. Kimery also sought treatment from Ms. 

Pennington as far back as October 4, 2013, one year prior to the work injury, 

complaining of pain, swelling, and tightness in his left knee . 

. At the hearing, Mr. Kimery denied any injury to his left knee prior to the work 

injury on October 22, 2014. When asked on direct examination if he had any issues with 

his left knee immediately prior to his work injury, Mr. Kimery responded, "not really." 

He testified his uncontrolled high blood pressure caused the pre-existing swelling in his 

knee. Although the Court finds Mr. Kimery's testimony credible, his opinion regarding 

the medical cause of his pre-existing knee swelling is simply unsupported by the medical 

proof before the Court at this time. Ms. Pennington expressed no opinion in the October 

4, 2013 or October 6, 2014 records that Mr. Kimery's left-knee symptoms stemmed from 

his uncontrolled high blood pressure for which she also treated him. Likewise, there is no 

medical opinion before the Court, from Ms. Pennington or any other provider, stating that 

Mr. Kimery's meniscus tear in his left knee and need for surgery arose primarily out of 

his work injury on October 22, 2014. 

The only medical proof before the Court addressing medical causation for Mr. 

Kimery's injury is from Dr. Jones, the panel-selected physician. Upon reviewing Mr. 

5 
Kimery's complete records showing his pre-existing left-knee symptoms, Dr. Jones could 

not opine that Mr. Kimery's work injury caused the meniscus tear. To the contrary, Dr. 

Jones opined: 

From the history, it appears he well could have had a tom meniscus that 

was giving him trouble prior to any injury on the job. Based on the fact that 

he did not inform us about this treatment I would consider it higher than a 

grade of 51% that this is not work related. 

Pursuant to section 50-6-102(13)(E), Dr. Jones' opinion is afforded a presumption 

of correctness on the issue of medical causation that is rebuttable only by a 

preponderance of the evidence. The Court finds the medical proof, at this time, is 

insufficient to rebut the presumption of correctness afforded Dr. Jones. Accordingly, the 

Court finds Mr. Kimery did not come forward with sufficient medical evidence from 

which the Court could determine he is likely to prevail on the merits at trial. 

Having found the medical proof fails to establish Mr. Kimery's left-knee meniscus 

tear primarily arose of his employment with Trillium, the Court further finds Mr. Kimery 

is not entitled to the requested temporary disability or medical benefits. 

IT IS, THEREFORE, ORDERED as follows: 

1. Mr. Kimery's request for medical benefits is denied. At this time, Mr. Kimery has 

not come forward with sufficient medical evidence from which the Court may 

conclude he is likely to prevail at a hearing on the merits at trial. 

2. Mr. Kimery's request for temporary disability and medical benefits is denied. At 

this time, Mr. Kimery has not come forward with sufficient evidence from which 

the Court may conclude he is likely to prevail at a hearing on the merits on this 

ISSUe. 

3. This matter is set for an Initial (Scheduling) Hearing on December 17, 2015, at 

9:30a.m. (CDT). 

ENTERED this the 13th day of 0 

Judge Amber E. Luttrell 

Court of Workers' Compensation Claims 

6 
Initial (Scheduling) Hearing: 

An Initial (Scheduling) Hearing has been set with Judge Amber E. Luttrell, 

Court of Workers' Compensation Claims. You must call 901-543-2668 or toll-free at 

855-543-5046 to participate. 

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). 

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 business days of the 

date the Workers' Compensation Judge entered the Expedited Hearing Order. 

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party. 

4. The appealing party is responsible for payment of a fiJing fee in the amount of 

$75.00. Within ten calendar days after the filing of a notice of appeal, payment 

must be received by check, money order, or credit card payment. Payments can be 

made in person at any Bureau office or by United States mail, hand-delivery, or 

other delivery service. In the alternative, the appealing party may file an Affidavit 

of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing 

fee. The Affidavit of Indigency may be filed contemporaneously with the Notice 

of Appeal or must be filed within ten calendar days thereafter. The Appeals Board 

will consider th,e Affidavit of Indigency and issue an Order granting or denying 

the request for a waiver of the filing fee as soon thereafter as is 

practicable. Failllre to timely pay the filing fee or file the Affidavit of 

Indigency 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 of having 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 of Appeal. Alternatively, the parties may file a joint statement of 

the evidence within ten calendar days of the filing of the Expedited Hearing 

7 
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 submitted to the Clerk of the Appeals Board. 

6. If the appellant elects to file a position statement in support of the interlocutory 

appeal, the appellant shall file such position statement with the Court Clerk within 

three business days of the expiration of the 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 Clerk within three business days of the 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 of the 

case from the evidence admitted during the expedited hearing; (2) a statement 

summarizing the disposition of the case as a result of the expedited hearing; (3) a 

statement of the issue(s) presented for review; and (4) an argument, citing 

appropriate statutes, case law, or other authority. 

CERTIFICATE OF SERVICE 

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

Denying Medical Benefits was sent to the following recipients by the following methods 

of service on this the 13th day of October, 2015. 

Name Certified 

Mail 

Monica Rejaei, Esq. 

David Deming, Esq. 

Via Via Service sent to: 

Fax Email 

X mrejael@nstlaw.com 

X ddeming@manierherod.com 

Penny Shrum, Clerk of Court 

Court of Workers' Compensation Claims 

WC.CourtClerk@tn.gov 

8 
APPENDIX 

Exhibits: 

1. Medical records of: 

• Somerville Medical Clinic 

• Concentra 

• Outpatient Diagnostic Center of Memphis (MRI) 

• Memphis Orthopedic Group 

2. Wage Statement 

3. First Report of Injury, Panel of Physicians, Notice of Denial, and Notice of 

Controversy 

4. Affidavit of Robert Kimery 

Technical Record: 4 

1. Petition for Benefit Determination (PBD), filed May 29, 2015 

2. Dispute Certification Notice (DCN), filed July 21, 2915 

3. Request for Expedited Hearing (REH), filed July 21, 2015 

4 The Court did not consider attachments to the above filings unless admitted into evidence during the Expedited 

Hearing. The Court considered factual statements in the above filings or any attachments to them as allegations 

unless established by the evidence. 

9