Soles, wesley v. Kirkland's Pest Control

FILED
June 23~ 2017
1N COURT Of
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Time 2:20 Pll
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KNOXVILLE
WESLEY L. SOLES, ) Docket No.: 2016-03-0991
Employee, )
v. )
KIRKLAND'S PEST CONTROL, ) State File No.: 72908-2016
Employer, )
and )
STARNET INSURANCE COMPANY, ) Judge Pamela B. Johnson
Carrier. )
EXPEDITED HEARING ORDER
DENYING WORKERS' COMPENSATION BENEFITS
This matter came before the undersigned Workers' Compensation Judge on May
31, 2017, for an Expedited Hearing. The central legal issue is whether Wesley Soles
demonstrated that he is likely to prevail at a hearing on the merits that his August 30,
2016 injury arose primarily out of and in the course and scope of his employment with
Kirkland's Pest Control. For the reasons set forth below, the Court holds Mr. Soles did
not carry his burden of proof. Thus, the Court denies his claim for temporary disability
and medical benefits at this time.
History of Claim
Mr. Soles worked for Kirkland 's as a pest control technician. His job duties
required him to spray for bugs at residential and commercial properties. In performing
his job duties, he carried a canister of insecticide weighing up to fifty pounds and often
descended and ascended stairs to reach the properties.
On or about August 26, Mr. Soles suffered a flare up of gout in his left knee and
left foot. During this time, he continued to work as scheduled on August 26 and August
29, but he wore a wrap on his knee to help with the gout pain. During this time, he also
walked with a limp due to his gout pain. On August 30, he reported to work without the
wrap on his knee, as he was able to move more and his pain had improved.
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During his workday on August 30, Mr. Soles provided pest control services to the
cabins at Big Ridge State Park. While descending stairs at a cabin and carrying the
canister of insecticide, he "heard a pop" and "felt a gush of pain" in his left knee when he
stepped from one step to the next. Mr. Soles denied that he stumbled, fell, slipped, or
tripped and further denied that his left knee gave way. He also denied that there were any
obstacles or defects to the stairs. He further indicated that, as far as he knew, carrying the
canister of pesticide did not cause his injury, but he acknowledged that he is not a
medical expert. He reported the work incident to D.R. Kirkland upon his return to the
office.
Mr. Soles was scheduled to see his primary care provider at Mountain Hope Good
Shepherd Clinic on September 1, to follow-up on unrelated medical conditions, including
the gout in his left knee and left foot. During this visit, he told the attending provider,
Barbara Z. Kwaasny, APN, of the work incident, and she rendered a diagnosis of acute
left knee pain. Ms. Kwaasny further recommended the use of crutches and a knee brace,
and she placed Mr. Soles on restricted duty, including no use of left leg and sedentary
work only. Mr. Soles returned to modified work the next day.
Kirkland's then provided Mr. Soles with a panel of physicians, and he selected
Rocky Top Medical Clinic. On September 7, Mr. Soles attended an authorized visit at
Rocky Top Medical Clinic and saw Dr. Steven Johnson. Mr. Soles reported the work
incident to Dr. Johnson, who diagnosed left knee pain and ordered physical therapy. Dr.
Johnson further recommended work restrictions. At this visit, Mr. Soles indicated he was
required to pay $100 out-of-pocket because he did not have a claim number; he denied
ever being reimbursed for this expense.
Through early September, Mr. Soles continued working modified duty; his last
day worked was September 19. He also continued to treat with his primary care provider
at Mountain Hope on September 20 and September 29, and received a diagnosis of right
knee and leg pain with swelling following left knee pain and use of crutches. The
attending provider instructed Mr. Soles to see the workers' compensation physician.
Mr. Soles returned to Dr. Johnson, the authorized physician, on September 30,
with continued complaints of left knee pain as well as swelling in the right leg. The
medical report noted a comorbid disease of gout in the left knee and foot. Dr. Johnson
recommended continued physical therapy and placed Mr. Soles off work completely until
he was evaluated and cleared by an orthopedic physician.
Based upon the referral by Dr. Johnson, Mr. Soles saw Dr. Rick Parsons at
Tennessee Orthopedic Clinic for an authorized orthopedic evaluation on October 6. Dr.
Parsons evaluated Mr. Soles and noted an impression of "rule out left medial meniscal
tear versus superficial deep venous thrombosis." Dr. Johnson recommended an MRI of
the left knee and kept Mr. Soles off work. Mr. Soles attended the left knee MRI on
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October 8, which demonstrated a linear intrasubstance tear involving the medial portion
of the patellar tendon with underlying tendinopathy.
Subsequently, Kirkland's carrier issued a Notice of Denial of Claim for
Compensation on October 12 and again on October 24. Kirkland's based its denial
claiming the defense of idiopathic incident. Additionally, on October 21, Kirkland's sent
correspondence to Mr. Soles instructing him to return to work immediately or submit his
resignation if unable to perform the duties he was hired to do.
Mr. Soles sought his own evaluation with orthopedic physician, Dr. Alan Whiton,
on October 25. After Mr. Soles provided a history of the August 30 work incident and
occasional episodes of gout, Dr. Whiton reviewed the MRI and performed a physical
examination. Dr. Whiton diagnosed patellar tendon strain and recommended immediate
commencement of physical therapy. Mr. Soles advised Dr. Whiton that he could not
afford physical therapy, so Dr. Whiton did not write an order for physical therapy. Dr.
Whiton instructed Mr. Soles to follow up with him if Kirkland's approved treatment or if
he decided to pursue treatment on his own. For his evaluation with Dr. Whiton, Mr.
Soles testified he paid $200 out-of-pocket, for which he seeks payment.
As to his work status, Mr. Soles testified he is unable to return to work due to his
left knee injury. He indicated he no longer requires the use of crutches but still
experiences pain. He further indicated he developed right knee pain due to favoring his
injured left knee. He denied prior orthopedic treatment or prior surgery
recommendations for his left knee. He also denied any prior diagnoses of a tear to his left
knee.
Findings of Fact and Conclusions of Law
The following legal principles govern the Court's analysis of this claim. In order
to ultimately prevail, Mr. Soles bears the burden of proving all essential elements of his
claim by a preponderance of the evidence. Scott v. Integrity Staffing Solutions, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). At an Expedited Hearing,
however, his burden of proof is lower and requires him only to come forward with
sufficient evidence from which this Court can determine that he is likely to prevail at a
hearing on the merits. See McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015). This lesser evidentiary standard does
not relieve Mr. Soles of the burden of producing evidence of an injury by accident that
arose primarily out of and in the course and scope of employment at an Expedited
Hearing, 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., 20 15 TN Wrk.
Comp. App. Bd. LEXIS 39, at *6 (Sept. 29, 2015).
With the above principles in mind, the term "injury" is defined as "an injury by
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accident ... 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." !d. For an
injury to be accidental, it must be "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.
Here, there is no question that Mr. Soles was acting in the course and scope of his
employment when he descended steps while carrying a canister of pesticide, and he
experienced pain in left knee. Instead, Kirkland's asserts that Mr. Soles' injury did not
arise out of the employment because the injury was idiopathic in nature and/or the result
of a pre-existing condition.
Addressing the idiopathic in nature defense first, the Court notes, "An idiopathic
injury is one that has an unexplained origin or cause, and generally does not arise out of
the employment unless 'some condition of the employment presents a peculiar or
additional hazard."' McCaffery v. Cardinal Logistics, 2015 TN Wrk. Comp. App. Bd.
LEXIS 50, at *9 (Dec. 10, 20 15) (internal citations omitted).
In McCaffery, the Workers' Compensation Appeals Board noted, "An injury that
occurs due to an idiopathic condition is compensable 'if an employment hazard causes or
exacerbates the injury."' McCaffery, at *10-11, (citing Phillips v. A&H Constr. Co., 134
S.W.3d 145, 148 (Tenn. 2004)). The Appeals Board further noted that "cause" means the
accident originated in the hazards to which the employee was exposed as a result of
performing his job duties. !d. Thus, the focus is on the causal link between the
employment and the accident or injury, rather than a causal link between the employment
and the idiopathic episode. !d.
For Mr. Soles to prove that his injury arose primarily out of his employment, he
must prove a condition or hazard incident to his employment caused or exacerbated his
injury. Id; see also Osborne v. Beacon Transport, LLC, eta!., 2016 TN Wrk. Comp.
App. Bd. LEXIS 49, at *6-7 (Sept. 27, 2016). The relevant inquiry is not what caused the
alleged idiopathic condition or event, but what caused the injury. Frye v. Vincent
Printing Co., eta!, 2016 TN. Wrk. Comp. App. Bd. LEXIS 34, at* 13 (Aug. 2, 2016).
Numerous Tennessee cases have dealt with idiopathic injuries, several of which
involved work injuries claimed while ascending or descending steps. Examples of
injuries deemed idiopathic by the Supreme Court include an unexplained seizure or
fainting episode, see, e.g., Sudduth v. Williams, 517 S.W.2d 520, 523 (Tenn. 1974), and a
knee "giving way" resulting in a fall, see, e.g., Greeson v. Am. Lava Corp., 392 S.W.2d
931,934-35 (Tenn. 1965). An injury caused by purely personal conditions, as opposed to
an employment condition, qualifies as idiopathic. See Thomas A. Reynolds, 20
Tennessee Practice Tennessee Workers' Compensation Practice and Procedure with
Forms, § 10:7 (2005). An injury may arise out of employment, however, if causally
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related to the activity required by the employer, even if that activity bears no relationship
to the normal work duties of the employee. Young v. Taylor-White, LLC, 181 S.W.3d
324, 329 (Tenn. 2005).
In this case, the parties rely heavily on the cases of Martin v. Flagship Airlines,
No. 01S01-9310-CH-00145, 1994 WL 902440 (Tenn. Workers' Comp. Panel June 27,
1994); McConkey v. Vonore Police Dep't., 2006 Tenn. LEXIS 204 (Tenn. Workers'
Comp. Panel Mar. 21, 2006); Dickerson v. Sarl, 2007 Tenn. LEXIS 916 (Tenn. Workers'
Comp. Panel May 29, 2007); and Veler v. Wackenhut Servs., 2011 Tenn. LEXIS 78
(Tenn. Workers' Comp. Panel Jan. 28, 2011).
Mr. Soles argues the cases of Martin, McConkey, and Veler are analogous to the
case before this Court. However, in each of the cases of Martin, McConkey, and Veler,
the Special Workers' Compensation Appeals Panel found the alleged injuries
compensable and awarded benefits, with consideration given to the remedial purpose of
the Workers' Compensation Law in place at that time. However, the Appeals Board has
noted, "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 of pre-July 1, 2014 statutes[.]" McCord, at* 13, n.4.
Conversely, Kirkland's seeks the Court's application of the opinions of Greeson
and Dickerson. In both Greeson and Dickerson, the employees had a long history of
knee problems. Mr. Greeson had a prior work injury, underwent surgery to remove a
tumor from his lower spine, and suffered significant atrophy of the involved leg. Mr.
Dickerson had two prior surgeries on the involved knee and walked with a limp at the
time the injury occurred.
Here, Mr. Soles stepped down onto his left foot while descending stairs, felt a
gush of pain in his left knee, and heard a pop. There is no evidence the stairs were
defective. He did not slip, trip, or fall. He further did not think that carrying the canister
of pesticide caused his injury, but acknowledged that he is not a medical doctor.
Although in the days leading up to the work incident Mr. Soles suffered gout in his left
knee, he denied any other prior problems with his left knee. He further denied receiving
orthopedic treatment for his left knee or receiving a diagnosis of a left knee tear prior to
the work incident. Upon careful consideration, at this time, this Court cannot find that
Mr. Soles is likely to prevail at a hearing on the merits in establishing that a condition or
hazard incident to his employment caused or exacerbated his injuries as required by
McCaffery and Osborne. See also English v. G4S Secure Solutions, et al., 2016 TN. Wrk.
Comp. App. Bd. LEXIS 48 (Sept. 27, 2016). Therefore, his requests for workers'
compensation benefits are denied at this time.
For the reasons set forth above, it is unnecessary for the Court to address the
. . .
remammg Issues.
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IT IS, THEREFORE, ORDERED as follows:
1. Mr. Soles' claim against Kirkland's Pest Control and its workers' compensation
carrier for the requested workers' compensation benefits is denied at this time.
2. This matter is set for a Scheduling Hearing on August 1, 2017, at 9:30a.m.
Eastern Time. The parties must call 865-594-0091 or 855-543-5041 toll-free to
participate in the Scheduling Hearing. Failure to appear by telephone may result
in a determination of the issues without your further participation.
ENTERED this the 23rd day of June, 2017.
HON. PAMELA B. JOHNSON
Workers' Compensation Judge
APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer's Initial Response in Opposition to Employee's Request for Expedited
Hearing
5. Employer's Motion for Continuance
6. Employer's Motion to Compel Discovery
7. Notice of Filing Pre-Hearing Brief
8. Order Granting Motion to Continue and Motion to Compel and Order Setting Case
for Status Conference
9. Notice ofFiling Wage Statement
10. Agreed Order Extending Time for Employee's Discovery Responses
11. Order Setting Expedited Hearing
12. Pre-Hearing Brief of Employee, Wesley Soles
13. Employer's supplemental Prehearing Brief
14. Employee's Motion to Strike
15. Employee's Motion to Amend Dispute Certification Notice
16. Employer's Response to Motion to Amend Dispute Certification Notice
17. Employer's Response to Motion to Strike
18. Order Granting Employee's Motion to Amend Dispute Certification Notice
19. Order Denying Employee's Motion to Strike
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20. Notice of Filing Medical Records of Mountain Hope Good Shepherd Clinic
The Court did not consider attachments to Technical Record filings unless
admitted into evidence during the Expedited Hearing. The Court considered factual
statements in these filings or any attachments to them as allegations unless established by
the evidence.
Exhibits:
1. Affidavit of Wesley L. Soles
2. Affidavit ofLorie Hale
3. Affidavit of Thomas Hobbs
4. First Report of Work Injury, Form C-20
5. Wage Statement(s), Form C-41
6. Notice ofDenial of Claim for Compensation, Form C-23, dated October 12, 2016
7. Notice ofDenial of Claim for Compensation, Form C-23, dated October 24, 2016
8. Kirkland's Pest Control Pay Stub for Pay Period of09/01/16- 09/15/16
9. Mr. Soles' Timeline of Scheduled Events
10. Mr. Soles' Requests for Temporary Total Disability Benefits
11. Mr. Soles' Handwritten Statement
12. Mr. Soles' Description of Job Responsibilities
13. Kirkland Pest Control Correspondence, dated October 21, 2016
14. Medical Record of Outpatient Diagnostic Center
15. Table of Contents ofMedical Records:
• Mountain Hope Good Shepherd Clinic
• Covenant Health
• Rocky Top Medical Center
• Tennessee Orthopedic Clinic
16. Mr. Soles' Injury Statement
Stipulations
The parties stipulated to the following: the existence of an employment
relationship; notice ofthe date of injury; and a weekly compensation rate of$313.73.
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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 23rd day
of June, 2017.
Name Certified Via Via Service sent to:
Mail Fax Email
Garry Ferraris, Esq. X GFerraris@ferrarislaw.com
Employee's Attorney
Alex B. Morrison, Esq. X ABMorrison@mijs.com
Employer's Attorney
p HRUM, Court Clerk
ou.rtCierk@tn.gov
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