INTHE COURT OF WORKERS' COMPENSATIONCLAIMS ATJACKSON
ROBERT KIMERY Employee, v. TRILLIUM STAFFING Employer, And
CORVELENTERPRISE COMPANY Insurance Carrier. ) DocketNo.: 2015-08-0166 ) ) State File No.: 91670-2014 ) ) JudgeAmberE. Luttrell ) ) ) ) ) )
EXPEDITEDHEARING ORDERDENYINGMEDICAL BENEFITSAND TEMPORARYDISABILITYBENEFITS

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 medicalbenefits and temporary disabilitybenefits for aleft-knee injury. The central issue for determination is whether Mr. Kimery presented sufficient medical proof of a knee injury arising primarily out ofand in the course and scope ofemployment. Ifthe Court finds Mr. Kimery sustained a compensable injury, the extent ofmedical and temporary benefits is at issue. For the reasons set forth below, the Court finds Mr. Kimery did not carryhis burden ofproving entitlementto the requestedbenefits atthis time. HistoryofClaim
Mr. Kimery is a forty-one year-old resident of Tipton County, Tennessee. He worked for Trillium Staffing,1 an industrial staffing service, as ajourneyman 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 ofthe relationship between these two companies. However, the pleadings filed indicate the employer is Trillium Staffing, and the parties didnot raise the identity ofthe properemployer 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 ofthe 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 ofthe 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 offalling 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 thejob 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 ofhis left knee on October 31, 2014, which revealed a medial meniscus tear. Following the MRI, Mr. Ciancioso advised Mr. Kimery to contact "Brandon" atTrillium.
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. Kimeryto seektreatment at ConcentraMedical Center, which evaluatedhim.
On November 11, 2014, the Concentra doctor diagnosed a left-knee medial meniscus tearand largejointeffusion.
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 offwork and advised him to return for follow up after surgery. The day prior to Mr. Kimery's surgery, the workers' compensation carrier cancelledthe surgerypending further investigation ofthe claim. The carrierfiled aNotice ofDenial and Notice ofControversy on December 9, 2014, stating, "Employee did not suffer an injury compensable underthe Tennessee Workers' CompensationAct." (Ex. 3.)
Trillium requested and obtained Mr. Kimery's complete records from Somerville
2Medical Center, his PCP, whichrevealedpre-existing swelling inMr. Kimery's leftknee. 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. OnOctober 6, 2014, twoweekspriorto his workinjury, Mr. Kimeryreturnedto Ms. Pennington reporting left-leg swelling, shortness of breath, and cough. Ms. Pennington diagnoseduncontrolledhighbloodpressure andleft-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:
Itis apparent that the patienthas documented swelling ofthe left knee and pain as far back as October 6, 2014. This is two weeks prior to when he saidhe hadhis injury. As such, it appears thathe had apreexistingproblem which he did not relate to us. From the history, it appears he well could have had a tommeniscus that was givinghim troublepriorto any injury on thejob. Based on the fact that he did not inform us about this treatment I wouldconsiderithigherthan agrade of51%thatthis is notworkrelated.
Mr. Kimery testified he sought treatment from Ms. Pennington on October 6, 2014, for his uncontrolledhigh bloodpressure. His wife expressed concern that he might have a blood clot in his leg promptinghim 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 theworkinjury. Following Trillium's denial ofthe 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 beganworking for Tradesman International, another industrial staffing company, earningtwenty dollars perhour as a millwright. Mr. Kimery describedthejob duties ofa millwright as a much less physicaljobthan thejobduties ofa pipefitter. Priorto working for Tradesman International, Mr. Kimery performed one small paintingjob for a friend from church andearnedthree hundreddollars.
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 CertificationNotice onJuly 21, 2015.

2 The record is unclear when Mr. Kimery was separatedfrom his employment at Trillium. 3Findings ofFactand Conclusions ofLaw
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 ofproof on all essential elements of a claim. Tindall v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987); Scottv. IntegrityStaffingSolutions, No. 2015- 01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015). An employee need notprove every element ofhis or her claim by a preponderance ofthe evidence in orderto obtain reliefat 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 compensableunderthe workers' compensation statutes, an injury must arise primarily out ofand occur in the course and scope ofthe employment. Tenn. Code Ann. § 50-6-102(13) (2014). 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 ofthe employee." !d. For an injury to be accidental, it must be "causedby a specific incident, or set ofincidents, arising primarily out ofand in the course and scope ofemployment, and is identifiable by time and place ofoccurrence." Tenn. Code Ann. § 50-6-102(13)(A) (2014). Moreover, "[t]he opinion of the treatingphysician, selected by the employee from the employer's designatedpanel of physicians

. . . shall be presumed correct on the issue ofcausation but this presumption shall be rebuttable by a preponderance of the evidence." Tenn. Code Ann. § 50-6- 1

02(13)(E)(2014).
The statutory requirements that an injury arise out of and in the course ofthe 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 ifit 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 ofemploymentrequirement focuses onthe 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 ofpre-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).

4circumstances 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.2d496, 498 (Tenn. 1992).
In this case, the Court finds that Mr. Kimery appeared calm, at ease, self-assured, steady, confident, forthcoming, reasonable andhonest, which characteristics, accordingto the Tennessee Supreme Court, are indicia ofreliability. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014). Mr. Kimery credibly testifiedthathe was atwork 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 occurredin the course ofMr. 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 workinjurythatreflecthe reported ahistory ofa specific workinjury to his left knee on October 22, 2014. However, there are additional records revealing Mr. Kimery reported symptoms in his left knee to Ms. Penningtonprior to the work injury. Mr. Kimery saw Ms. Pennington on October 6, 2014, merely two weeks priorto 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 ofpain, swelling, andtightness inhis leftknee

.

.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 ifhe 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 ofhis pre-existing knee swelling is simply unsupported by the medical proofbefore 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 uncontrolledhighbloodpressure for which she also treated him. Likewise, there is no medical opinionbeforethe Court, from Ms. Penningtonor any otherprovider, statingthat Mr. Kimery's meniscus tear in his left knee and need for surgery aroseprimarily out of his work injury on October22, 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.
5Kimery's complete records showinghis 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 himtrouble priorto any injury on thejob. Based on the fact that he did not inform us about this treatment I would consider it higher than a grade of51%thatthis is notworkrelated.
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 ofcorrectness afforded Dr. Jones. Accordingly, the Court finds Mr. Kimery did not come forward with sufficient medical evidence from whichthe Courtcould determinehe is likelytoprevail on the merits attrial. Having found the medicalprooffails to establishMr. Kimery's left-knee meniscus tearprimarily arose ofhis employmentwithTrillium, the Court further finds Mr. Kimery is not entitledto the requested temporary disability ormedical benefits.



### ITIS, THEREFORE, ORDERED as follows:
1. Mr. Kimery's request for medical benefits is denied. Atthis 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 attrial.
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 of0

JudgeAmberE. Luttrell CourtofWorkers' Compensation Claims

6Initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Judge Amber E. Luttrell, CourtofWorkers' Compensation Claims. You must call 901-543-2668 ortoll-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 yourfurther participation. All conferences are set using CentralTime (CT). Rightto Appeal:
TennesseeLaw allows any party who disagrees with this ExpeditedHearing 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: "ExpeditedHearingNotice ofAppeal."
2. File the completed form with the Court Clerk within seven business days ofthe date the Workers' CompensationJudge enteredtheExpeditedHearing Order.
3. Serve acopy oftheExpeditedHearingNotice ofAppeal upon the opposingparty. 4

. The appealing party is responsible for payment ofa 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 cardpayment. 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 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 or mustbe filed within ten calendar days thereafter. The Appeals Board will consider th,e Affidavit ofIndigency 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 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
7Notice 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 submittedto the Clerkofthe Appeals Board.
6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file such position statementwith the Court Clerkwithin three 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, withthe Court Clerkwithinthree 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, 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 ofservice on this the 13thday ofOctober, 2015.

Name Certified Mail MonicaRejaei, Esq

. DavidDeming, Esq. Via Via Service sentto: Fax Email X mrejael@nstlaw.com X ddeming@manierherod.com

Penny Shrum, ClerkofCourt CourtofWorkers' Compensation Claims WC.CourtClerk@tn.gov

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### APPENDIX
Exhibits: 1. Medicalrecords of: • SomervilleMedical Clinic • Concentra • OutpatientDiagnostic CenterofMemphis (MRI) • Memphis Orthopedic Group 2. Wage Statement 3. First Report of Injury, Panel of Physicians, Notice of Denial, and Notice of Controversy 4. Affidavit ofRobertKimery
TechnicalRecord:4 1. Petitionfor BenefitDetermination (PBD), filed May 29, 2015 2. Dispute CertificationNotice (DCN), filed July 21, 2915 3. Request for ExpeditedHearing (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 bythe evidence.
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