Lawson, James v. Mid South Transport , 2015 TN WC 34 ( 2015 )

FILED
April 15,2015
TN C OURT OF
WORKERS' CO :\fPE~ SA TlOI"
CLAD IS
Time: 8:27 A.\1
COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
EMPLOYEE: JAMES LAWSON DOCKET#: 2014-02-0067
STATE FILE#: 98697-2014
EMPLOYER: MID-SOUTH TRANSPORT DATE OF INJURY: 12/16/2014
INSURANCE CARRIER: NATIONAL INTERSTATE INS.
EXPEDITED HEAJUNG ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge on March 30,
2015, upon the Request for Expedited Hearing filed by Employee, James Lawson (Mr. Lawson), on
February 25, 2015, pursuant to Tennessee Code Annotated section 50-6-239 to determine if
Employer, Mid-South Transport (Mid-South) is obligated to provide additional temporary disability
benefits, and upon two Requests for Expedited Hearing filed by counsel for Mid-South to compel
discovery.
ANALYSIS
Issues
1. Whether Mr. Lawson submitted sufficient evidence to prove he would likely succeed on the
merits of his claim for medical and temporary disability benefits.
2. Whether this Court should grant Mid-South's Motion to compel Mr. Lawson to attend a
deposition.
3. Whether this Court should grant Mid-South's Motion to compel Mr. Lawson to attend an
IME.
4. Whether Mid-South is entitled to an attorney fee.
Evidence Submitted
The only witness was Mr. Lawson.
The Court designated the following as the technical record:
• Petition for Benefit Determination
• Dispute Certification Notice
• Request for Expedited Hearing
1
• Employer's Response to Expedited Hearing
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 as
allegations unless established by the evidence.
The Court admitted the following into evidence:
• Exhibit 1: Mr. Lawson's Affidavit dated January 26,2015 (2 pages)
• Exhibit 2: Nova Medical Center Work Status Form (1 page)
• Exhibit 3: Dr. Fred Knickerbocker-Medical Notes (16 pages)
• Exhibit 4: Dr. Patrick Riggins-Medical Notes (4 pages)
• Exhibit 5: Job Application (2 pages)
Stipulations of the Parties
The Parties stipulated the following facts:
• Mr. Lawson's average weekly wage is $695.34, and his compensation rate is $463.56.
History of Claim
Mr. Lawson, a former truck-driver for Mid-South, alleges an injury to his left knee on
December 16, 2014, as he stepped down from his truck. Mr. Lawson previously provided notice of a
work injury to Mid-South on August 1, 2014, for an injury to his left calf and knee as he attempted to
get into a truck. For the August 1, 2014 injury, Mr. Lawson treated with Drs. Fred Knickerbocker
and Patrick Riggins.
Dr. Fred Knickerbocker saw Mr. Lawson several times for the August 1, 2014 injury. Mr.
Lawson's main complaint was knee pain. During the course of treatment, Dr. Knickerbocker
discovered that Mr. Lawson had a congenital bipartite patella (Exhibit 3, page 11). Mr. Lawson
underwent injections and physical therapy but continued to complain of pain and clicking in his knee
(Ex. 3, page 11). Dr. Knickerbocker could not find Mr. Lawson's pain generator, and as a result,
recommended a second opinion.
Dr. Riggins saw Mr. Lawson on November 19, 2014, for a second opinion. Dr. Riggins took
Mr. Lawson's history, noted his prior treatment, and examined his knee (Exhibit 4, page 1). Dr.
Riggins' impression was a status post left calf strain, status post left knee strain with pain in the
lateral aspect possibly coming from a grating or snapping Iliotibial (IT) band, and chondromalacia of
the knee (Ex. 4, page 2). Dr. Riggins directed Mr. Lawson to return to Dr. Knickerbocker or another
physician for a cortisone injection to the knee, and Xylocaine and steroid injections directly over the
IT band on the lateral joint line. Dr. Riggins did not recommend surgery, but noted he would
consider ordering a repeat MRI if Mr. Lawson's knee pain worsened or if a doctor could document
recurrent swelling or effusion (Ex. 4, page 3).
2
Mr. Lawson returned to Dr. Knickerbocker on December 4, 2014, and reported mild pain in
the medial side of the left knee with popping and sharp pain in the lateral side (Ex. 3, page 12). Dr.
Knickerbocker injected Mr. Lawson's knee (Ex. 3, page 13). On December 11,2014, Mr. Lawson
returned to Dr. Knickerbocker. Dr. Knickerbocker noted the injection did not alleviate Mr. Lawson's
symptoms (Ex. 3, pages 14-15). Dr. Knickerbocker could not find any objective reason for Mr.
Lawson's complaints. He returned Mr. Lawson to work with no restrictions a:s long as he drove an
automatic truck (Ex. 3, page 15). Mr. Lawson returned to work for Mid-South.
On December 16, 2014, Mr. Lawson delivered a load to Electro lux in Memphis, Tennessee.
As he climbed down from his truck using a three point stance, his left knee bent backwards when he
placed his full weight on it. The next morning he reported the alleged injury to his supervisor, who
sent him to Nova Medical Centers (Nova).
Dr. Bonnie Randolph with Nova saw Mr. Lawson on December 17, 2014. Dr. Randolph
recorded Mr. Lawson's description of the injury as, "Patient states that he was stepping out of his
truck when his left knee bent backwards." She diagnosed left knee internal derangement, placed Mr.
Lawson on light-duty restrictions through December 23, 2014, and recommended follow-up services
(Exhibit 2).
After seeing Dr. Randolph, Mr. Lawson returned to his home in Kingsport, Tennessee. Mid-
South did not provide any additional medical treatment after December 17, 2014. Mid-South
terminated Mr. Lawson on December 31, 2014, by letter and listed voluntary resignation as the
reason for the termination.
Mr. Lawson worked as a truck driver for a different employer from January 29, 2015, until
March 17, 2015.
Mr. Lawson filed a Petition for Benefit Determination (PBD) for temporary disability
benefits and medical benefits. The parties participated in Alternative Dispute Resolution (ADR) but
did not reach an agreement about the issues.
On February 12,2015, Mid-South's attorney filed aPBD to compel Mr. Lawson to attend an
independent medical examination (IME). On January 29,2015, Mid-South's attorney filed another
PBD to compel Mr. Lawson to attend a deposition. The parties participated in ADR but did not
reach an agreement on the discovery issues.
The parties presented all identified issues to the Court during an Expedited Hearing on March
30, 2015.
Mr. Lawson's Contentions
Mr. Lawson stated that he suffered a compensable injury when his knee bent backwards on
December 16, 2014. He requested medical and temporary disability benefits. He acknowledged he
continued to experience left leg symptoms from his August 1, 2014 injury, up to the December 16,
2014 alleged injury.
3
Concerning the IME, Mr. Lawson felt Mid-South tried to bully him into seeing Dr.
Knickerbocker. He wanted to see a doctor from a panel of physicians for the December 16, 2014
injury instead of returning to Dr. Knickerbocker for an IME. He also stated that the nurse case
manager and Dr. Knickerbocker were "pals" and "best friends," and this kept him from getting
appropriate care.
Mr. Lawson did not object to providing deposition testimony if the Court ordered it.
Mid-South's Contentions
Mid-South contended that Mr. Lawson suffered an idiopathic injury. It further averred that
Mr. Lawson has pre-existing medical conditions and the December 16, 2014 injury did not advance
or exacerbate them.
Mid-South requested an IME pursuant to Tennessee Code Annotated section 50-6-204(d)
2014 and Rule 35 ofthe Tennessee Rules of Civil Procedure. Mid-South contended it is entitled to
an IME to address whether Mr. Lawson's left knee condition is acute or pre-existing. It further
asserted that Dr. Knickerbocker would be the best doctor to perform the evaluation since he treated
Mr. Lawson for his August 1, 2014 injury. Mid-South requested an order compelling Mr. Lawson to
attend an IME with Dr. Knickerbocker as soon as possible.
Mid-South requested a deposition according to Tennessee Rules of Civil Procedure
(T.R.C.P.), Rule 27. As mentioned previously, Mr. Lawson did not object to the deposition if the
Court ordered it.
Mid-South requested the Court to award an attorney fee in the amount of$390.00 due to the
time required to bring its discovery motions pursuant to T.R.C.P. 37.
Findings of Fact and Conclusions of Law
Standard Applied
"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). Tennessee
Code Annotated section 50-6-239(c)(6) provides that, "[ u]nless the statute provides for a different standard
of proof, at a hearing, the employee shall bear the burden of proving each and every element of the claim by
a preponderance of the evidence." Tenn. Code Ann. section 50-6-239(c) (2014). A different standard of
proof exists for the issuance of interlocutory orders at expedited hearings than the standard of proof required
at compensation hearings. McCord v. Advantage Human Resourcing, No. 2014-06-0063 (Tenn. Work.
Comp. App. Bd., March 27, 2015). A workers' compensation judge may enter an interlocutory order for
medical or temporary benefits upon a determination that the injured employee would likely prevail at a
hearing on the merits. Tenn. Code Ann. 50-6-239(d)(l) (2014); McCall v. Nat'! Health Care Corp., 100
S.W.3d 209, 214 (Tenn. 2003).
4
Factual Findings
The evidence establishes that Mr. Lawson injured his knee on August 1, 2014. Dr.
Knickerbocker is the treating physician for Mr. Lawson's August 1, 20 14 injury. When Mr. Lawson
returned to work from that injury, he continued to suffer symptoms. On December 16, 2014, his
knee bent backwards while getting out of his truck. Mr. Lawson did not prove any hazard incident to
his employment that caused his knee to bend backwards. Mid-South did not provide Mr. Lawson
with a panel of physicians for the December 16, 2014, alleged work injury. Mid-South only
provided initial treatment at Nova. Mid-South terminated Mr. Lawson on December 31, 2014. Mr.
Lawson worked for a different employer from January 29, 2015, until March 17, 2015.
Application of Law to Facts
The first issue in this case is whether Mr. Lawson submitted sufficient evidence to prove he
would likely succeed on the merits of his claim for medical and temporary disability benefits.
Tennessee Code Annotated Section 50-6-102(13)(2014) defines injury as follows:
"Injury" or "personal injury" mean an injury by accident, a mental injury,
occupational disease including diseases ofthe heart, lung and hypertension, or
cumulative trauma conditions including hearing loss, carpal tunnel syndrome
or any other repetitive motion conditions, 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; provided, that:
(A) An injury is "accidental only if the injury is 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, and shall not include the aggravation of a
preexisting disease, condition or ailment unless it can
be shown to a reasonable degree of medical certainty
that the aggravation arose primarily out of and in the
course and scope of employment;
(B) 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;
(C) An injury causes death, disablement or the need for
medical treatment only if it has been shown to a
reasonable degree of medical certainty that it
contributed more than fifty percent (50%) in causing
death, disablement or need for medical treatment,
considering all causes.
5
Mr. Lawson alleged his knee buckled and he injured his leg when he stepped down out of his
truck.
The facts in this case are similar to the facts in Dickerson v. Sari, 2007 Tenn. LEXIS 916,
(Tenn. Oct. 18, 2007). In Dickerson, the injured employee used a handrail to ascend stairs, and as he
was doing so his leg buckled. !d. at 2. Even though the employee in Dickerson did not actually fall,
the court used the term "idiopathic fall" and noted the following:
An "idiopathic fall" is said to occur when the fall is caused by a
condition of unknown origin. The cases in which this issue arises
generally involve either an unexplained seizure or fainting episode, e.g.
Sudduth v. Williams, 517 S.W.2d 520 (Tenn. 1974), or a knee giving way
without explanation, e.g. Greeson v. Am. Lava Corp., 216 Tenn. 461,
392 S.W.2d 931 (Tenn. 1965). An injury caused by such a fall does not
arise from the employment. So, an unexplained fall onto a bare floor is
not compensable. Sudduth, 517 S.W.2d at 523. However, if the work
environment contains an additional risk element, for example, dangerous
machinery or heights, that enhances the injury that would have otherwise
occurred, the resulting injury will be compensable. See Phillips v. A&H
Constr. Co., Inc., 134 S.W.3d 145, 150 (Tenn. 2004).
Dickerson, 2007 Tenn. LEXIS 916 at 5-6.
Mr. Lawson has not established that there was an additional employment related risk element
involved that enhanced his injury. He simply placed his weight on his leg as he would do while
walking or negotiating stairs. Based upon all the evidence submitted, Mr. Lawson has failed to
prove he is likely to succeed on the merits of the claim. Therefore, this Court hereby denies Mr.
Lawson's request for medical and temporary total disability benefits at this time.
The remaining issue is whether this Court should grant Mid-South's motion to compel Mr.
Lawson to attend an IME with Dr. Knickerbocker. Mid-South made a request pursuant to statute and
also the Rules of Civil Procedure.
Tennessee Code Annotated section 50-6-204(d)(1)(2014) states:
The injured employee must submit to examination by the employer's
physician at all reasonable times if requested to do so by the employer,
but the employee shall have the right to have the employee's own
physician present at the examination, in which case the employee shall
be liable to the employee's physician for that physician's services.
Tennessee Code Annotated section 50-6-204(d)(8)(2014) states that the request for
examination must be a "reasonable request." There is nothing unreasonable about the IME request in
this case.
6
Mid-South relies on Overstreet v. TRW Commercial Steering Division, 253 S.W.3d 626
(Tenn. 2008), and Myers v. Vanderbilt Univ., 2010 LEXIS 443 (W.C. Panel 2010) to support its
position on entitlement to an IME. Tennessee courts have consistently held that employers are
entitled to a reasonable examination by their doctor. Mid-South has proven that it is entitled to an
IME because the issue of Mr. Lawson's leg injury remains.
However, this Court has found that Dr. Knickerbocker is the "treating physician" for Mr.
Lawson's August 1, 2014 injury. As such, Dr. Knickerbocker is placed in an untenable position ifhe
serves as the employer's physician for the present injury. It seems he cannot serve as the
"employer's physician" for his subsequent alleged injury while at the same time serving as the
treating physician regarding his first injury. Ms. Lawson shall attend an IME with Mid-South's
designated physician, but that said physician should be someone other than Dr. Knickerbocker.
In its Response Brief, Mid-South requested attorney fees pursuant to T.R.C.P. Rule 37.01(4).
This Court may award attorney fees to a party that brings a successful Motion to Compel Discovery
if an opposing party fails to answer a question during a deposition, fails to answer an interrogatory,
or fails to respond to a request for inspection. T.R.C.P. Rule 37.01 (2). Mid-South failed to establish
that Mr. Lawson refused to answer a question during a deposition. Rule 37.01 does not mention IME
requests are subject to an attorney fee. Therefore, Mid-South's request for an attorney fee is denied.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Lawson's claim against Mid-South or its workers' compensation carrier for the requested
temporary disability and medical benefits is denied at this time.
2. Mr. Lawson shall attend a deposition set by counsel for Mid-South within thirty (30) days of
this order.
3. Mr. Lawson shall attend an IME with employer' s doctor.
4. Mid-South's request for attorney fees is denied.
5. This matter is set for Initial Hearing on June 4, 2015, at 2:00p.m. eastern time.
ENTERED this the 15th day of April 2015.
BRIAN K. ADDINGTON
Workers' Compensation Judge
7
[rritial Hearing:
An Initial Hearing has been set with Judge Brian K. Addington, Court of Workers
Compensation. You must call 865-594-6538 or toll free at 855-543-5044 to participate in the Initial
Hearing.
Please Note: You must call in on June 4, 2015, at 2:00p.m. Eastern Time to participate.
Failure to call in may result in a determination of the issues without your further participation.
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 (7) business days of the date the
Expedited Hearing Order was entered by the Workers' Compensation Judge.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. 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 (10)
calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the
parties may file a statement ofthe evidence within ten (10) calendar days ofthe filing ofthe
Expedited Hearing Notice of Appeal. The statement of the evidence must be approved by the
Judge before the record is submitted to the Clerk of the Appeals Board.
5. If the appellant elects to file a position statement in support of the interlocutory appeal, the
appealing party shall file such position statement with the Court Clerk within three (3)
business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues
presented for review and including any argument in support thereof. If the appellee elects to
file a response in opposition to the interlocutory appeal, appellee shall do so within three (3)
business days of the filing of the appellant's position statement.
8
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the
following recipients by the following methods of service on this the 15th day of April, 2015.
Name Certified First Via Fax Via Email Address
Mail Class Fax Number Email
Mail
James Lawson X southpawedl@yahoo.com
Allen Callison, Esq. X acallison(iiJeraclides.com
P .r NYSHRUM
C ~ RK OF THE COURT
9