Everett, Delta v. Life Style Staffing

FILED

Nov 07, 2024

11:20 AM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Delta Everett ) Docket No. 2023-03-1417

)

v. ) State File No. 860096-2023

)

Life Style Staffing, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Pamela B. Johnson, Judge )

Affirmed and Remanded

In this interlocutory appeal, the employer asserts the trial court erred in awarding temporary

disability benefits to the employee. Following her alleged work injury, the employer

offered work that complied with the employee’s work restrictions, which the employee

accepted. Despite her acceptance of the light duty job offer, the employee did not return

to work. Almost one year later, after the employer provided another panel, this time of

orthopedic specialists, the authorized treating physician issued an opinion indicating that

the employee should have been restricted from working from the date of the accident

through the date of his nurse practitioner’s examination. The trial court relied on this

opinion in awarding temporary disability benefits, and the employer has appealed. Upon

careful consideration of the record, we affirm the trial court’s order and remand the case.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge

Timothy W. Conner and Judge Meredith B. Weaver joined.

J. Allen Callison, Brentwood, Tennessee, for the employer-appellant, Life Style Staffing

Andrew J. Roberto, Knoxville, Tennessee, for the employee-appellee, Delta Everett

Factual and Procedural Background

Delta Everett (“Employee”), a machine operator working for Life Style Staffing

(“Employer”), alleged she suffered an injury while re-stacking pallets on January 26, 2023.

Employee asserted that, after she reported the incident, Employer did not provide a panel

of physicians initially but instructed her to report to a specific provider. On February 4,

Employee was evaluated at East Tennessee Medical Group Urgent Care and reported pain

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throughout her back and neck. 1 She provided a history of lifting and twisting at work when

her “back popped.” X-rays performed of Employee’s cervical spine were normal with

“[n]o fractures or acute findings.” Employee was seen by Dr. Bryan Thompson, who

diagnosed her with neck and back pain. Dr. Thompson opined that Employee’s work was

more than fifty percent of the cause of her injury, considering all causes, and assigned work

restrictions of occasional standing or walking, frequent sitting, and no other physical

activities. Dr. Thompson also provided a “no driving” restriction.

On February 6, Employer offered light duty work to Employee. It was undisputed

that Employee accepted the offer, but the parties disputed the date she was supposed to

return to work. 2 Employee asserted that due to her driving restriction, she needed

assistance with transportation to and from work and contended Employer was unresponsive

to her requests in that regard. Employer, on the other hand, denied that there was to be any

delay or alternative arrangements to be made before Employee was to begin her light duty

position. Employer claimed Employee was to begin work the day after it extended the

written offer on February 7. When Employee did not report to work as scheduled, she was

later deemed a “repeat no-call, no-show.”

Employee returned to the occupational health clinic on February 14 and saw Dr.

David Calvert. Dr. Calvert ordered an MRI of Employee’s cervical spine and assigned the

same work restrictions. Employer did not authorize the MRI. On February 21, Employee

returned for a follow-up appointment and was seen by Dr. Thompson again. Dr. Thompson

noted right leg numbness, provided steroid injections, and told Employee to return in three

days to “see if [physical therapy] will be necessary.” Employee was given the same work

restrictions. 3 On February 24, Employee was seen by Dr. Calvert and referred to an

orthopedic specialist. Employer did not provide a panel. Thereafter, Employee filed a

petition for benefit determination and sought an expedited hearing to obtain a panel of

orthopedic physicians and temporary disability benefits.

Employer denied Employee’s claim, arguing that she did not sustain an injury

arising primarily out of the employment and that she failed to accept the light duty offered

her. In a decision on the record, the trial court granted Employee’s request for an

orthopedic panel but denied her claim for temporary disability benefits at that time. The

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Employee initially treated with a nurse through telehealth and then treated on her own at an occupational

health clinic. The record indicates she later selected the same clinic from a panel provided by Employer.

2

Employee signed an offer of light duty which identified a start date of February 7, 2023, and specified

work hours of Monday through Friday, 8:00 a.m. to 5:00 p.m., with duties consisting of “sitting at a desk

greeting applicants and showing them where, on the computer, they would fill out their application.”

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In April, in response to a request for clarification from Employer, Dr. Thompson stated that the driving

restriction was limited to commercial driving. Employee contended that she contacted Employer to inquire

about returning to work but did not receive a response.

2

court noted that the available medical proof supported a finding that Employee’s job

activities were more than fifty percent the cause of her injury. The court also noted that

Employee had been referred to an orthopedic specialist when her symptoms failed to

improve. Specifically, the court stated that “[a]s the authorized treating providers selected

from a panel, their opinions on causation, recommended treatment, and reasonable

necessity are presumed correct.” The court determined Employer had offered no proof to

overcome these presumptions and, thus, Employee had proven she was likely to prevail at

a hearing on the merits in establishing her entitlement to a panel of orthopedists. Regarding

temporary disability benefits, the court considered the reasonableness of Employer’s

actions in offering an accommodated position and the reasonableness of Employee in

declining the offer. It noted that Employee testified she accepted a light duty position but

was never given a start date and that, in response, Employer presented proof that Employee

signed a written offer that included the start date. As a result, the court stated it could not

find that Employee was likely to prevail on her request for temporary partial disability

benefits. That order was not appealed.

Pursuant to the trial court’s order, Employer offered Employee an orthopedic panel

from which she selected Dr. Patrick Bolt as her authorized treating physician. Employee

saw Dr. Bolt’s nurse practitioner on January 19, 2024, almost one year after the work

accident, and was assigned light duty restrictions of alternating sitting and standing, lifting

no more than 10 pounds frequently, and no stooping, bending, or twisting. On February 8,

counsel for Employee sent a medical questionnaire to Dr. Bolt in which counsel provided

a summary of Employee’s treatment to date and detailed the work restrictions provided by

Dr. Thompson. On February 14, although Dr. Bolt had not personally examined Employee

at the time, he responded to the questionnaire “[g]iven his evaluation of [Employee].” 4

When asked if “her work-related injury on January 26, 2023, [was] more than 50% the

cause for her to be restricted from all work from January 26, 2023, until further notice by

your office,” Dr. Bolt checked “yes.” Dr. Bolt also agreed that Employee’s work

restrictions from January 26, 2023 remained in place “until further notice” and that she

“should be out of work from her 1/26/23 injury until evaluated 1/19/24. From 1/19/24 until

now, she is on the above restrictions.” Dr. Bolt also noted that he was awaiting the results

of Employee’s MRI.

Employee filed a new request for expedited hearing seeking temporary benefits,

relying on the statements of Dr. Bolt. At the hearing, Employer relied on Dr. Thompson’s

previous records and the fact that Dr. Bolt did not personally see Employee at her initial

visit in support of its argument that the court should not accept Dr. Bolt’s opinions

regarding Employee’s restrictions.

In its order awarding temporary disability benefits, the court determined that the

reason for Employee’s failure to return to work following the light duty job offer was

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Employee did not see Dr. Bolt in person until March 25, 2024.

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“immaterial” in light of Dr. Bolt’s unrefuted medical testimony that she was completely

restricted from working from the date of the accident though the date of the examination

by Dr. Bolt’s nurse practitioner and had light duty restrictions thereafter. As a result, it

ordered temporary disability benefits at the stipulated rate of $427.58 per week from

January 20, 2023, through the date of the order and ongoing until Employee reached

maximum medical improvement or was able to return to work. Employer has appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the court’s

factual findings are correct unless the preponderance of the evidence is otherwise. See

Tenn. Code Ann. § 50-6-239(c)(7) (2023). When the trial judge has had the opportunity

to observe a witness’s demeanor and to hear in-court testimony, we give considerable

deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn.,

Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be

afforded the trial court’s findings based upon documentary evidence.” Goodman v.

Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.

Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of

statutes and regulations are questions of law that are reviewed de novo with no presumption

of correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone

N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our

obligation to construe the workers’ compensation statutes “fairly, impartially, and in

accordance with basic principles of statutory construction” and in a way that does not favor

either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2023).

Analysis

Temporary Disability Benefits

To qualify for temporary total disability benefits, an employee must establish: (1)

that he or she became disabled from working due to a compensable injury; (2) that there is

a causal connection between the injury and the inability to work; and (3) the duration of

the period of disability. 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)

(citing Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978)). An employee’s

entitlement to temporary total disability benefits ends when the employee either reaches

maximum medical improvement or is able to return to work. See Simpson, 564 S.W.2d at

955 (“Temporary total disability benefits are terminated either by the ability to return to

work or attainment of maximum recovery.”).

On appeal, Employer contends the trial court erred in treating Dr. Bolt’s opinions

regarding Employee’s work restrictions as “unrefuted” when Employee was previously

provided work restrictions by authorized medical providers. It argues that Dr. Bolt had not

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even personally examined Employee when he responded to the medical questionnaire and

asserts the court should have “reached the conclusion that the Employee was capable of

light duty work, that a reasonable job offer was presented to the Employee, and that the

Employee failed to comply with the Employer’s reasonable job offer.”

Employee responds that Employer’s argument was waived because the “only

medical proof testimony provided at the Expedited Hearing was from Dr. Bolt, the

Employee’s Authorized Treating Physician, and was read into the record without objection

from the Employer.” Employee also points out that Employer did not take Dr. Bolt’s

deposition or submit a questionnaire to Dr. Bolt regarding Employee’s restrictions.

Further, Employee argues that Dr. Bolt is an orthopedic surgeon and, thus, was in a better

position to determine Employee’s restrictions because he “is more highly qualified and had

access to more available information” than Dr. Thompson, a family medicine physician.

Finally, Employee asks that Employer’s appeal be deemed frivolous.

For purposes of this appeal, Employer does not contest the occurrence of the work

accident. Moreover, Dr. Bolt, an authorized treating physician selected from a panel,

provided an opinion that Employee should have been off work from the date of the accident

through January 19, 2024, and should be on restrictions from that time forward. In its brief

on appeal, Employer points to the restrictions originally assigned by Dr. Thompson in

support of its argument that Dr. Bolt’s opinion regarding restrictions was not “unrefuted.”

Although we agree the record indicates that Employer offered Employee a light duty

position within the restrictions Employee had been assigned at the time, Employer has

presented us with no legal authority that suggests an authorized treating physician is

prohibited from addressing work restrictions retroactively. As we have noted previously,

“[a]lthough there may be circumstances where a delay in obtaining such information could

render the evidence less reliable or persuasive, it is the trial court’s role to assess and weigh

that evidence to determine if [the employee] has met the applicable burden of proof.”

McKim v. Stansell Electric Co., Inc., No. 2022-07-0215, 2023 TN Wrk. Comp. App. Bd.

LEXIS 11, at *13 (Tenn. Workers’ Comp. App. Bd. Feb. 22, 2023). After receiving Dr.

Bolt’s responses to Employee’s questionnaire, Employer did not forward its own

questionnaire to Dr. Bolt seeking clarification; it did not seek to depose Dr. Bolt; and it did

not offer any other expert’s opinion to rebut those of Dr. Bolt.

Further, Dr. Bolt is an orthopedic surgeon and is the authorized treating physician

selected from an Employer-provided panel. Thus, the trial court was within its discretion

to accept the opinion of an orthopedic specialist selected from an employer-provided panel

over that of a general practice physician, and we will reverse such a decision only upon a

showing that the trial court abused its discretion in doing so. See Moore v. Beacon

Transport, LLC, No. 2018-06-1503, 2021 TN Wrk. Comp. App. Bd. LEXIS 39, at *7 n.1

(Tenn. Workers’ Comp. App. Bd. Oct. 29, 2021).

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As we have previously noted, at an expedited hearing, an employee need not

establish every essential element of his or her claim by a preponderance of the evidence

but must come forward with sufficient evidence from which the trial court can determine

that the employee likely will prevail at a hearing on the merits. McCord v. Advantage

Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9

(Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). We have also observed that the

legislature

deliberately established a lesser standard of proof to be applied at expedited

hearings that authorizes trial courts to order the initiation of certain benefits

on an interlocutory basis prior to the final trial of a case. In evaluating a

request for benefits at an expedited hearing, the trial court must determine,

based on the totality of the evidence presented at that time, whether the

employee “would likely prevail” at trial.

Miller v. Old Folks Mission Ctr., Inc., No. 2018-07-0022, 2019 TN Wrk. Comp. App. Bd.

LEXIS 1, at *18 (Tenn. Workers’ Comp. App. Bd. Jan. 9, 2019). In reviewing an expedited

order, we are not to consider whether the employee met the preponderance of the evidence

standard necessary to prevail at trial. Rather, we are to address whether the employee

presented sufficient evidence to establish a likelihood of prevailing at trial. Here, we

discern no error by the trial court in reviewing the expert medical proof submitted by the

parties and weighing the evidence in light of the expedited hearing standard. Considering

the record in its entirety, we conclude there is sufficient evidence to support the trial court’s

order awarding temporary disability benefits.

Frivolous Appeal

Finally, Employee has asked that we deem this appeal frivolous and award

attorneys’ fees and costs associated with it. As we have noted previously, a frivolous

appeal is one that is devoid of merit or brought solely for delay. Yarbrough v. Protective

Servs. Co., Inc., No. 2015-08-0574, 2016 TN Wrk. Comp. App. Bd. LEXIS 3, at *11 (Tenn.

Workers’ Comp. App. Bd. Jan. 25, 2016). “[P]arties should not be required to endure the

hassle and expense of baseless litigation. Nor should appellate courts be required to waste

time and resources on appeals that have no realistic chance of success.” Id. at *10-11

(citations omitted). In considering the totality of the circumstances, we do not find this

appeal to be frivolous. We therefore deny Employee’s request for attorneys’ fees and costs.

Conclusion

For the foregoing reasons, we affirm the trial court’s order and remand the case.

Costs on appeal are taxed to Employer.

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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Delta Everett ) Docket No. 2023-03-1417

)

v. ) State File No. 860096-2023

)

Life Style Staffing, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Pamela B. Johnson, Judge )

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 7th day

of November, 2024.

Name Certified First Class Via Via Sent to:

Mail Mail Fax Email

Allen Callison X allen.callison@mgclaw.com

cynthia.yeager@mgclaw.com

Andrew Roberto X aroberto@brownandroberto.com

bseay@brownandroberto.com

Pamela B. Johnson, Judge X Via Electronic Mail

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov

Workers’ Compensation Claims

Olivia Yearwood

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-1606

Electronic Mail: WCAppeals.Clerk@tn.gov