MacDonald, Michael v. Greene County Sheriff's Department

COURT OF WORKERS' COMPENSATION CLAIMS
AT KINGSPORT
Michael MacDonald ) Docket No.: 2015-02-0077
Employee, )
v. ) State File No.: 24786-2015
)
Greene County Sherifrs Department ) Date of Injury: February 26, 2015
Employer, )
And ) Judge: Brian K. Addington
)
Tri-State Claims Service )
Insurance Carrier. )
EXPEDITED HEARING ORDER GRANTING TEMPORARY MEDICAL AND
DISABILITY BENEFITS (RECORD REVIEW ONLY)
THIS CAUSE came before the undersigned Workers' Compensation Judge on July
28, 2015, upon the Request for Expedited Hearing filed by Michael MacDonald (Mr.
MacDonald), the Employee, on June 24, 2015, pursuant to Tennessee Code Annotated
section 50-6-239 (2014) to determine if the Employer, Greene County Sheriffs
Department (GCSD), is obligated to provide medical and temporary disability
benefits. Considering the positions of the parties, the applicable law, and all of the
evidence submitted, the Court concludes that Mr. MacDonald is entitled to the requested
benefits.
ANALYSIS
Issues
1. Whether Mr. MacDonald sustained an injury that arose primarily out of and in the
course and scope of employment with GCSD.
2. Whether Mr. MacDonald's injury was idiopathic in nature.
3. Whether Mr. MacDonald was injured while engaged in a significant deviation
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from his work duties.
4. Whether GCSD is obligated to pay for any past medical expenses and/or mileage
expense.
5. Whether Mr. MacDonald is entitled to any past or future temporary total disability
benefits, and if so, in what amount.
6. Whether Mr. MacDonald is entitled to any past or future temporary partial
disability benefits, and if so, in what amount.
7. Whether GCSD has adequate grounds to deny Mr. MacDonald's claim based on
the following affirmative defense: Voluntary participation in a non-work activity.
Evidence Submitted
The Court admitted into evidence the exhibits below:
1. Affidavit of Michael MacDonald, April 16, 20 15;
2. Affidavit ofMichael MacDonald, June 23, 2015;
3. First Report of Injury;
4. Wage Statement; 1
5. Form C-23 Notice ofDenial of Claim for Compensation;
6. Panel of Physicians;
7. Dr. Todd Christensen Letter, April2, 2015;
8. Dr. Todd Christensen Letter, March 24, 2015;
9. Dr. Todd Christensen Letter, June 23, 2015;
10. Dr. Todd Christensen Letter, July 16, 2015;
11. PA Christopher Fleming Letter, October 14, 20 14;
12. Medical Records: TMA Orthopedics (TMA); and,
13. Medical Records: Takoma Hospital (TAK).
The Court designated the following as the technical record:
• Request for Expedited Hearing, June 24, 2015
• Letter Attached to Request for Expedited Hearing-Attorney Jonathan Cave
• GCSD Response to Request for Expedited Hearing
• Dispute Certification Notice (DCN), May 15, 2015
• Dispute Certification Notice (DCN), July 21, 2015
• Letter Attached to DCN-Attomey Cave, July 21, 2015
• Petition for Benefit Determination (PBD), April2, 2015.
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The provided Wage Statement itemizes Mr. MacDonald's wages for the 52-week period before the October 3,
2014 injury. This Wage Statement is appropriate and will be used to calculate any benefit owed for the February 26,
2015 injury, which is alleged to be a direct and natural consequence ofthe original October 2014 injury.
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History of Claim
Mr. MacDonald worked for GCSD as a Sheriffs Deputy when, on October 3,
2014, he responded to a call to a residence. (Exs. 1-2.) As Mr. MacDonald climbed a
ladder to reach the attic over the residence's garage, he fell from the ladder and fractured
his left ankle. ld. Dr. Todd Christensen at TMA provided authorized medical care for
Mr. MacDonald's left ankle injury. After an MRI of the left ankle revealed a low grade
sprain, bone contusion, and microfracture, Mr. MacDonald received conservative
treatment. (Ex.13, p. 112.)
Dr. Christensen's physician's assistant (PA), Christopher Fleming, took Mr.
MacDonald off work from October 6 through October 19, 2014. (Ex. 11.) He allowed
Mr. MacDonald to return to light duty on October 20, 2014. Mr. MacDonald's attorney
acknowledged in his June 21, 2015 letter that GCSD accommodated Mr. MacDonald's
restrictions with a dispatcher job "at same or equal pay until February 26, 2015."
On February 26, 2015, Mr. MacDonald stepped down from the front door of his
home on his way to retrieve garbage cans when his left ankle "gave out." (Ex. 1.) Mr.
MacDonald landed awkwardly on his right foot and fractured his right ankle. (Ex. 13, p.
18.) He received emergency care from Dr. Laura Lipscomb, who noted Mr.
MacDonald's October 20 14 left ankle injury and that he had "recently discontinued
crutches 1-2 weeks ago per orthopedics." (Ex. 13, p. 53.)
After undergoing an "ankle dislocation reduction using traction" and receiving a
splint, Mr. MacDonald saw Dr. Christensen for his right-ankle injury the next day,
February 27, 2015. (Ex. 13, p. 57.) The provided C-42 physician panel established that
Mr. MacDonald chose Dr. Christensen as his authorized provider with regard to the
February 26, 2015 accident. (Ex. 6.) Mr. MacDonald signed his panel selection on April
10, 2015. Id.
Dr. Christensen recommended an open reduction internal fixation (ORIF) surgery
after his initial visit with Mr. MacDonald. (Ex. 13, p. 20.) Moreover, Dr. Christensen
confined Mr. MacDonald to a wheelchair, "so he is not putting any weight on the right
lower extremity, and due to his instability, I do not want him to trust too unduly on the
left lower extremity until we are sure it is doing well with therapy." Id.
Dr. Ch~istensen performed the right ankle ORIF surgery four days later on March
2, 2015. (Ex. 12, p. 24.) During his post-operative visit with Dr. Christensen on March
17, 2015, Mr. MacDonald could "ambulate with wheel chair." (Ex. 12, p. 1.) Dr.
Christensen placed his right ankle in a fracture boot and allowed "toe-touch
weightbearing for four more weeks." (Ex. 12, Page 3.) He also ordered physical therapy.
I d.
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Regarding causation, Dr. Christensen stated on March 24, 2015, that "it is
reasonable to say that the work-related left ankle injury on October 3, 2014, was a
contributing factor to the new injury of the right ankle that occurred on February 26,
2015." (Ex. 8.) In a second letter dated April2, 2015, the doctor elaborated as follows:
"I can say to a reasonable degree of medical certainty, considering all causes, that Mr.
MacDonald's injury of his right ankle that occurred on February 261\ 2015, was a direct
and natural consequence from the work-related left ankle injury of October 3rd, 2014."
(Ex. 7.)
On April 14, 2015, Tri-State Claims, CGSD's insurance carrier, filed a C-23
Notice of Denial with the Court, asserting that the "injury did not occur due to course and
scope of employment. [Injured Worker] was at home when incident occurred." The
Notice indicated that Tri-State Claims denied Mr. MacDonald's claim on March 12,
2015, and notified Mr. MacDonald and his physicians ofthe denial that same day.
As of May 12, 2015, Dr. Christensen allowed Mr. MacDonald to return to work
with restrictions, but GCSD did not accommodate the restrictions. (Ex. 2.) In a letter
dated June 23, 2015, Dr. Christensen returned Mr. MacDonald to work at full duty on
June 29, 2015. (Ex. 9.) However, on July 16, 2015, Dr. Christensen assigned new
restrictions of "sitting or standing limited to 30 minutes at a time and with a 30 minute
break afterwards." (Ex. 10.) There is no indication in the available medical records that
Dr. Christensen has placed Mr. MacDonald at maximum medical improvement (MMI)
for his injuries. Mr. MacDonald has not returned to work since the February 26, 2015
accident. (Ex. 2.)
The Wage Statement indicated that Mr. MacDonald earned wages for the 52-week
period prior to the October 3, 2014 work injury sufficient to entitle him to an average
weekly wage of$678.69 and a compensation rate of$452.48. (Ex. 4.)
Mr. MacDonald filed a PBD on April 2, 2015, seeking medical and temporary
disability benefits. The parties did not resolve the disputed issues through mediation and
the Mediation Specialist filed the DCN on May 27, 2015. Mr. MacDonald filed a REH
by file review only on June 24, 2015, regarding the February 26, 2015 event. Mr.
MacDonald filed a second REH with regard to the October 3, 2014 work injury on July
21, 2015. The Court consolidated the cases under the February 26, 2015 docket number.
Mr. MacDonald's Contentions
Mr; MacDonald asserts that he is entitled to workers' compensation benefits
associated with his right-ankle injury, which arose as a direct and natural consequence of
his compensable left-ankle injury from October 3, 2014. There is no evidence of either
an independent intervening cause or negligence on his part to undercut his argument.
The medical records and causation assessments of his authorized physician, Dr.
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Christensen, support his position. He is entitled to past and ongoing temporary disability
benefits in accordance with Dr. Christensen's restrictions. Dr. Christensen has not placed
him at MMI for his injuries.
CGSD's Contentions
CGSD contends that the February 26, 2015 injury did not arise out of Mr.
MacDonald's employment, and did not occur within the course and scope of his
employment. It owes no temporary disability benefits, given the fact that Dr. Christensen
returned him to work with no restrictions on June 29, 2015.
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 (20 14 ). 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.
Factual Findings
Mr. MacDonald injured his left ankle while acting in the course and scope of his
employment as a sheriffs deputy with GCSD on October 3, 2014. He received
conservative authorized medical treatment with Dr. Christensen. Thereafter, Mr.
MacDonald injured his right ankle during a fall at home on February 26, 2015, which
resulted from weakness in his injured left ankle. He chose Dr. Christensen from GCSD's
panel of physicians as his authorized provider for the right-ankle injury. Dr. Christensen
performed ORIF surgery on Mr. MacDonald's right ankle on March 2, 2015. Dr.
Christensen determined that "Mr. MacDonald's injury of his right ankle that occurred on
February 26th, 2015, was a direct and natural consequence from the work-related left
ankle injury of October 3rd, 2014." GCSD accommodated Mr. MacDonald's work
restrictions after the October 2014 work injury and paid him his normal wages until the
February 26, 2015 accident. Mr. MacDonald was wheelchair-bound and unable to work
until May 12, 2015, when Dr. MacDonald issued work restrictions that GCSD did not
accommodate. Dr. Christensen returned Mr. MacDonald to full duty from June 29, 2015,
through July 16, 2015, at which point he again issued work restrictions. Mr. MacDonald
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is not at MMI, nor has he returned to work. Mr. MacDonald's applicable average weekly
wage is $678.69, and his compensation rate is $452.48.
Application ofLaw to Facts
The Workers' Compensation Law defines "injury" and "personal injury" to mean
an injury by accident "arising primarily out of and in the course and scope of
employment[.]" Tenn. Code Ann. § 50-6-102(13)(A) (2014). 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[.] !d. 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(13)(B) (2014).
Tennessee has long recognized the "direct and natural consequences rule." As the
Tennessee Supreme Court stated, "a subsequent injury, whether in the form of an
aggravation of the original injury or a new and distinct injury, is compensable if it is the
'direct and natural result' of a compensable injury." Rogers v. Shaw, 813 S.W.2d 397,
399-400 (Tenn. 1991). Consequently, "all the medical consequences and sequelae that
flow from the primary injury are compensable." !d. at 400.
In the case at bar, the authorized treating physician, Dr. Christensen, determined
that "Mr. MacDonald's injury of his right ankle that occurred on February 26th, 2015, was
a direct and natural consequence from the work-related left ankle injury of October 3rd,
2014." The Court finds that, by virtue of Dr. Christensen's opinion, Mr. MacDonald has
satisfied his obligation of establishing that his right-ankle injury of February 26, 2015, is
a direct and natural consequence of the underlying October 3, 2014 work-related injury.
Consequently, Mr. MacDonald is entitled to the medical treatment Dr. Christensen has
provided and continues to provide for his right-ankle injury.
Moreover, the Court finds that Mr. MacDonald is entitled to temporary disability
benefits with regard to his right-ankle injury. The Tennessee Supreme Court held that, in
order to make out a prima facie case of entitlement to temporary total disability, an
employee must prove that he was "(1) totally disabled to work by a compensable injury;
(2) that there was a causal connection between the injury and his inability to work; and
(3) the duration of that period of disability. Temporary total disability benefits are
terminated either by the ability to return to work or attainment of maximum recovery."
Simpson v. Satterfield, 564 S.W.2d 953, 954 (Tenn. 1978). The Court finds that Mr.
MacDonald satisfies the Simpson requirements for temporary total disability benefits for
the period ofFebruary 26 through May 11, 2015.
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Temporary partial disability benefits are payable, prior to the injured worker
reaching MMI, when the treating physician returns the employee to work with
restrictions that the employer cannot accommodate, or when an employer accommodates
the restrictions, but pays the worker less each week than the employee's pre-injury
average weekly wage. Temporary partial disability benefits are paid at the rate of 2/3 of
the difference between the pre-injury average weekly wage and what the injured worker
is able to earn in his injured condition. Tenn. Code Ann. § 50-6-207(2). If the employer
cannot accommodate the worker's restrictions, and the employee is unable to otherwise
earn wages at a different job, then the temporary partial disability rate may equate to 2/3
ofthe injured worker's pre-injury average weekly wage.
The Court finds that Mr. MacDonald is entitled to temporary total disability
benefits at his compensation rate of $452.48 from February 26, 2015, through May 11,
2015, in the amount of $4,783.36; temporary partial disability benefits at the rate of
$452.48 from May 12, 2015, through June 28, 2015, in the amount of $3,102.72; and
temporary partial disability benefits at the rate of $452.48 from July 16, 2015, to the date
of this Order in the amount of $1 ,046.24, as well as ongoing temporary disability
benefits.
The Court finds that Mr. MacDonald is likely to prevail at a hearing on the merits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. MacDonald is entitled to authorized medical treatment for his right ankle
injury in accordance with the directions of his authorized treating physician, Dr.
Christensen.
2. Mr. MacDonald is entitled to past temporary disability benefits in the total amount
of $8,932.32. Furthermore, Mr. MacDonald is entitled to ongoing temporary
disability benefits in accordance with the work status determinations of Dr.
Christensen.
3. This matter is set for Initial Hearing on September 25, 2015, at 2:00p.m. Eastern
Time.
ENTERED this 31st day of July 2015.
Judge Brian K. Addington
Court of Workers' Compensation Claims
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Initial Hearing:
An Initial Hearing has been set with Judge Addington, Court of Workers'
Compensation Claims. 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 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 Eastern Time (ET).
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 filing 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 the 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. Failure to timely pay the filing fee or file the Affidavit of
lndigency in accordance with thls 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
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Appeal. The Judge must approve the statement of the evidence before the Court
Clerk may submit the record to the Clerk of the Appeals Board.
6. 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 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 business days of the filing of the
appellant's position statement.
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 3rd day of
August, 20 15.
Name Certified Via Via Service sent to:
Mail Fax Email
Jonathan Cave, Esq. X wc@cavelawfirm.com
Thomas Kilday, Esq. X tkilday@milligancoleman.com
Penny Shru , erk of Court
Court of W ers' Compensation Claims
WC.CourtClerk@tn.gov
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