The opinion
FILED
Apr 18, 2019
11:51 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
DE’BRESHIA LARRY, )
Employee, ) Docket No. 2018-08-0945
v. )
CASH AMERICA INT’L, )
Employer, )
And ) State File No. 63568-2017
TRAVELERS INDEMNITY CO., )
Carrier, )
and )
SUBSEQUENT INJURY AND ) Judge Deana Seymour
VOCATIONAL RECOVERY FUND. )
EXPEDITED HEARING ORDER
This case came before the Court on March 25, 2019, for an Expedited Hearing.
The central issue is whether De’breshia Larry’s right-knee injury is idiopathic or work-
related. For the reasons below, the Court holds the injury is work-related and she is
entitled to medical benefits.
History of Claim
Ms. Larry claimed she injured her right knee at work on August 21, 2017. She
immediately notified Cash America International of her injury and went to the emergency
room. The emergency room records indicated that Ms. Larry presented with sudden right-
knee pain that started just before her arrival. She was diagnosed and treated for a lateral
dislocation of her patella, which the note mentioned she experienced several times as a
child.
The parties agreed on very little about the events of August 21. Both agreed that
Ms. Larry’s right knee dislocated while she was behind the counter at work, but they
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vehemently contested the details surrounding her injury.
Ms. Larry testified that when she turned to help a customer, part of her right foot
landed on the edge of a safety mat and part landed on the floor. She felt a pop in her right
knee and almost fell. Her co-worker, Damien Coleman, caught her and laid her on the
counter. Another co-worker drove her to the emergency room.
Cash America relied on the live testimony of Aquavia Means and the affidavits of
Mr. Coleman and Schuyler Crowe. Ms. Means testified that she witnessed Ms. Larry’s
injury and prepared an incident report. According to Ms. Means, Ms. Larry did not turn
or twist before her knee dislocated. Instead, she took two steps and fell. Ms. Means
testified that Ms. Larry was not near the safety mat when she fell, and she denied that any
customers were in the store.
Mr. Coleman’s affidavit testimony supported Ms. Means’ version of events. He
also testified that Ms. Larry never told him she injured her knee while twisting or turning.
Ms. Crowe testified by affidavit that she notified Ms. Larry her claim was denied
because no workplace hazard caused her condition. She sent Ms. Larry the Notice of
Denial on August 23.
After learning that Cash America denied her claim, Ms. Larry treated on her own
with Dr. Nahum Beard and Dr. Anthony Mascioli at Campbell Clinic. Ms. Larry advised
Dr. Beard that she dislocated her knee when she shifted her weight to her right leg and
her kneecap popped out to the side. She indicated that her knee had never done this
before, but she mentioned having “mechanical symptoms” as a child. She told Dr.
Mascioli she was standing at work, twisted, and her knee gave out. She denied any
previous history of knee instability.
Dr. Beard diagnosed Ms. Larry with a patellar dislocation and possible underlying
dysplasia that might have predisposed her to the dislocation. He placed her in a brace,
ordered an MRI, and referred her to Dr. Mascioli to discuss further options. Dr. Mascioli
planned to treat Ms. Larry conservatively. However, Ms. Larry decided to change and
began treating with Dr. Richard Ennis.
Ms. Larry advised Dr. Ennis that she injured her right knee when she turned
suddenly and felt a pop in her knee. According to Dr. Ennis’ office note, Ms. Larry had
experienced two additional dislocations since that time. Dr. Ennis initially recommended
conservative treatment but ultimately referred Ms. Larry to Dr. Robert Bobo to consider
surgery. After examining Ms. Larry’s knee and reviewing her MRI report, Dr. Bobo
noted the findings were “not extremely strong for surgical treatment.” He injected her
knee, referred her to physical therapy, and prescribed medication.
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When she did not improve, Dr. Bobo referred her to Dr. Michael Hood. In an
April 6, 2018 office note, Dr. Hood observed “gross instability with lateral patella
instability” in the right knee despite “exhaustive conservative management” over an
eight-month period. He recommended a medial patellofemoral ligament reconstruction
and indicated that her work incident was 100% responsible for her current condition. He
specifically indicated that Ms. Larry had no preexisting patellofemoral dysplasia and
there was “no reason to believe this was a congenital problem.”
On October 19, Ms. Larry filed a Petition for Benefit Determination (PBD)
seeking medical and temporary disability benefits as well as attorneys’ fees. At the time
of the Expedited Hearing, Ms. Larry continued to have problems with her right knee and
insisted she needed the recommended surgery. She also continued to work for Cash
America and received a promotion to assistant store manager. She testified that she had
no hospitalizations, health conditions, or restrictions before her work injury.
Cash America argued that Ms. Larry changed her version of events several times
during the course of her claim. It pointed to the histories Ms. Larry gave to her medical
providers, the description of her injury in her PBD, and her testimony about the incident
in her affidavit. Cash America also referenced portions of Ms. Larry’s medical records
where providers mentioned previous problems with her right knee as a child. Further, it
pointed out that none of Ms. Larry’s providers took her off work during her treatment.
The Subsequent Injury and Vocational Recovery Fund (SIF) moved to be
dismissed as Ms. Larry continued to work and did not suffer from a permanent and pre-
existing disabling condition before the alleged injury. The Court took the motion under
advisement. The Court finds this motion premature. An Expedited Hearing is
interlocutory in nature and not for final decisions. However, the SIF may file a written
motion for relief. The present motion is denied.
Findings of Fact and Conclusions of Law
Standard Applied
At an Expedited Hearing, Ms. Larry need not prove every element of her claim by
a preponderance of the evidence but must come forward with sufficient evidence from
which the trial court can determine that she is likely to prevail at a hearing on the merits.
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015). This lesser evidentiary standard does not relieve Ms. Larry of the
burden to produce evidence of an injury by accident that arose primarily out of and in the
course and scope of employment, but “allows some relief to be granted if that evidence
does not rise to the level of a ‘preponderance of the evidence.’” Buchanan v. Carlex
Glass Co., 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Sept. 29, 2015).
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Idiopathic Injury
Turning to the central issue of this case, the Court must first determine whether
Ms. Larry sustained an idiopathic right-knee injury. An idiopathic injury is one that “has
an unexplained origin or cause, and generally does not arise out of the employment.”
McCaffery v. Cardinal Logistics, 2015 TN Wrk. Comp. App. Bd. LEXIS 50, at *9 (Dec.
10, 2015). If an employment hazard causes or exacerbates an injury that occurs due to an
idiopathic condition, however, the injury is compensable. See id. at *10. Cause in this
context means “the accident originated in the hazards to which the employee was
exposed as a result of performing his job duties,” and the Court must focus on the causal
link between the employment and the accident or injury not the employment and the
idiopathic episode. Id. at *10-11.
Ms. Larry testified that when she turned to help a customer, her right foot planted
on the edge of the safety mat so that part of her foot landed on the mat and part landed on
the floor. She felt a pop in her right knee and almost fell. She testified similarly in her
affidavit. In her PBD, Ms. Larry did not mention the safety mat, but she described
twisting and hurting her knee at work. She provided a similar history to Dr. Mascioli and
told Dr. Ennis that she “turned suddenly” and felt a pop in her knee.
The Court recognizes that credibility is an integral issue in this case and
appreciates the concerns Cash America raised regarding Ms. Larry’s version of events.
The Court acknowledges that she gave somewhat inconsistent histories to the doctors.
She also had trouble recalling who witnessed her injury and where she received
emergency care. However, “[e]ven if minor and insignificant details vary, an injured
worker should not be penalized simply for being a poor historian.” Orman v. Williams
Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn. 1991). While Ms. Larry might not be a good
historian, she made a credible witness. She testified calmly and confidently and was
reasonable and forthcoming. See Kelly v. Kelly, 445 S.W.3d 685, 694-5 (Tenn. 2014).
The Court also recognizes that witnesses to the incident do not recall Ms. Larry
turning or twisting when the injury occurred. However, in light of Ms. Larry’s testimony
and the photographs introduced of the counter area and safety mat, the Court finds her
version of events more convincing. The photographs show that the safety mat spans the
entire length of the counter, so if she was standing behind the counter, as everyone has
indicated, she would be on or near the safety mat.
The irony of finding that a “safety mat” posed a hazard does not escape the Court,
but in this case, the evidence leads to this very conclusion. Therefore, based on the
foregoing, the Court holds that Ms. Larry is likely to succeed at a hearing on the merits in
proving she did not sustain an idiopathic injury.
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Arising Primarily Out of Employment
The Court further holds that Ms. Larry is likely to succeed at a hearing on the
merits in proving her condition arose primarily out of her employment. An injury “arises
primarily out of and in the course and scope of employment” only if it has been shown by
a preponderance of the evidence that the employment contributed “more than fifty
percent (50%) in causing the injury, considering all causes.” Tenn. Code Ann. § 50-6-
102(14)(B). Medical evidence is generally required to establish a causal relationship,
except in the most “obvious, simple [or] routine cases.” Berdnik v. Fairfield Glade Cmty.
Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at *10-11 (May 18, 2017).
Ms. Larry introduced Dr. Hood’s April 27, 2018 opinion indicating that her work
incident was 100% responsible for her current medical condition. Cash America did not
introduce any medical proof to contradict this opinion. Instead, it pointed to medical
records that mentioned prior problems with her knee during childhood and noted possible
underlying dysplasia that predisposed her to a patellar dislocation. However, Ms. Larry
denied telling her medical providers that she had problems with her knee as a child.
Moreover, Dr. Hood specifically stated that Ms. Larry had no preexisting patellofemoral
dysplasia and stated there was “no reason to believe this was a congenital problem.”
Based on this evidence, the Court holds that Ms. Larry is likely to prevail at a hearing on
the merits on this issue.
Medical Benefits
Since Ms. Larry showed a likelihood of success in proving that her injury arose
primarily out of her employment, Cash America is required to provide reasonable and
necessary medical treatment for her work injury. See Tenn. Code Ann. § 50-6-
204(a)(1)(A). Cash America denied Ms. Larry’s claim two days after her injury and never
provided medical benefits or a panel of physicians. If an employer fails to provide a
panel, it risks having to pay for all reasonable and necessary medical expenses incurred
by an employee for treatment with an unauthorized physician and also risks having to
provide continuing care with the unauthorized physician. See Young v. Young Elec., 2016
TN Wrk. Comp. App. Bd. LEXIS 24, at *16 (May 25, 2016).
While Ms. Larry provided no proof of the expenses incurred for her unauthorized
treatment, the Court designates Dr. Hood as Ms. Larry’s authorized treating physician for
ongoing treatment. Ms. Larry specifically asked the Court to order the surgery
recommended by Dr. Hood. However, Dr. Hood made his surgical recommendation over
a year ago, and his treatment plan might have changed. Therefore, the Court orders Cash
America to provide Ms. Larry with all reasonable and necessary medical treatment
recommended by Dr. Hood for her work injury.
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Temporary Disability Benefits
To receive temporary total disability benefits, Ms. Larry must show (1) total
disability from working as the result of a compensable injury; (2) a causal connection
between the injury and the inability to work; and (3) the duration of the period of
disability. Shepherd v. Haren Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS
15, at *13 (Mar. 30, 2016).
The medical records do not show that Ms. Larry’s medical providers took her off
work or placed her on restricted duty as a result of her knee injury. Ms. Larry admitted
that her doctors never took her off work. Therefore, she is not entitled to temporary
disability benefits at this time.
Attorneys’ Fees
Ms. Larry’s counsel requests attorneys’ fees under Tennessee Code Annotated
section 50-6-226(d)(1)(B). This statute does not set a time for attorneys’ fee awards, but
the Appeals Board stated:
Given the uncertainties inherent in litigation, the limited issues typically
addressed at expedited hearings, the fact that discovery and medical proof
often are incomplete at an interlocutory stage of a case, the standard of
proof that applies at expedited hearings, and the fact that a trial judge’s
determinations at an interlocutory hearing are subject to change at any time
prior to the entry of a final compensation hearing order, a decision to award
attorneys’ fees and expenses at an interlocutory stage of a case should be
made only in extremely limited circumstances.
Thompson v. Comcast Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *28-29 (Jan.
30, 2018). The Court holds this case does not fall within “extremely limited
circumstances” to justify an award of attorneys’ fees at this interlocutory stage. Thus, the
Court denies this request at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Cash America shall provide Ms. Larry with reasonable and necessary medical
treatment under Tennessee Code Annotated section 50-6-204. The Court
designates Dr. Michael Hood as Ms. Larry’s authorized treating physician for
ongoing treatment.
2. No temporary disability benefits are due at this time.
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3. This matter is set for a Scheduling Hearing on June 3, 2019, at 11:00 a.m.
central time. You must call toll-free at 866-943-0014 to participate in the
Hearing. Failure to call may result in a determination of the issues without your
participation.
4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3).
The Insurer or Self-Insured Employer must submit confirmation of compliance
with this Order to the Bureau by email to WCCompliance.Program@tn.gov no
later than the seventh business day after entry of this Order. Failure to submit the
necessary confirmation within the period of compliance may result in a penalty
assessment for non-compliance. For questions regarding compliance, please
contact the Workers’ Compensation Compliance Unit by email at
WCCompliance.Program@tn.gov.
ENTERED April 18, 2019.
_____________________________________
JUDGE DEANA C. SEYMOUR
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Medical records with Table of Contents (Collective)
2. Petition for Benefit Determination
3. Dispute Certification Notice
4. Request for Expedited Hearing, with Affidavit of De’Breshia Larry in Support of
Request for Expedited Hearing
5. Subsequent Injury and Vocational Recovery Fund’s Expedited Hearing Brief
6. Employer’s Witness List
7. Employer’s Exhibit List
7a. Photographs (Collective)
7b. Work-Related Injury/Illness Report
7c. Notice of Denial of Claim for Compensation
7d. Affidavit of Damien Coleman
7e. Signed statement of Marcus Taylor (For identification only)
7f. Affidavit of Schuyler Crowe
8. Employee’s Witness List
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9. Employee’s Exhibit List, with attachments
10. Employer/Carrier’s Expedited Hearing Pre-Trial Brief, with attachments
11. Photograph of safety mat
12. Affidavit of Attorney Andrew L. Wener
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing, with attached Affidavit of De’Breshia Larry in
Support of Request for Expedited Hearing
4. Subsequent Injury and Vocational Recovery Fund’s Expedited Hearing Brief
5. Employer’s Witness List
6. Employer’s Exhibit List, with attachments
7. Employee’s Motion in Limine
8. Employee’s Witness List
9. Employee’s Exhibit List, with attachments
10. Employer/Carrier’s Expedited Hearing Pre-Trial Brief, with attachments
11. Employee’s Second Motion in Limine
12. Employer/Carrier’s Response to Employee’s Motions in Limine
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent to these recipients by the following
methods of service on April 18, 2019.
Name Certified Fax Regular Email Sent to:
Mail mail
Andrew Wener, X awener@wenerlawfirm.com
Employee’s attorney
Paul Nicks, X pnicks@travelers.com
Employer’s attorney
Timothy Kellum, X timothy.kellum@tn.gov
SIF Attorney
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082