Dennis, Jr., Robert v. Polymer Components

2016 TN WC 186
CourtTennessee Court of Workers' Compensation Claims
DecidedAugust 10, 2016
Docket2015-01-0184
StatusPublished

This text of 2016 TN WC 186 (Dennis, Jr., Robert v. Polymer Components) is published on Counsel Stack Legal Research, covering Tennessee Court of Workers' Compensation Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dennis, Jr., Robert v. Polymer Components, 2016 TN WC 186 (Tenn. Super. Ct. 2016).

Opinion

F~ED

August 10,2016

1N COURT OF WORKERS ' COMPENSATION CLAIMS

Time 9: 50 Al\1

TENNESSEE BUREAU OF WORKERS' COMPENSATION IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT CHATTANOOGA

Robert Dennis, Jr. ) Docket No.: 2015-01-0184 Employee, ) v. ) State File Number: 43330-2015 Polymer Components ) Employer, ) Judge Audrey A. Headrick And ) Accident Fund ) Insurance Carrier. ) )

EXPEDITED HEARING ORDER GRANTING TEMPORARY DISABILITY BENEFITS

This matter came before the Court on July 13, 2016, on a Request for Expedited Hearing filed by the employee, Robert Dennis, Jr., pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is whether Mr. Dennis is entitled to past and ongoing temporary disability benefits. The central legal issue is whether Mr. Dennis is likely to prevail at a hearing on the merits of this issue. For the reasons set forth below, the Court finds Mr. Dennis is likely to prevail at a hearing on the merits in proving entitlement to past and ongoing temporary disability benefits based on the evidence presented at this time. 1

History of Claim

Based upon the evidence introduced during the November 20, 2015, and July 13, 2016 evidentiary hearings, the Court finds as follows: 2 1 A complet e li sting of the technical record and exhibit is att ached to this Order as an appendix. 2 The Court previously held an expedited hearing in this man er on November 20,2015. The hearing resulted in the Court ordering Polymer Components (Polymer), at Mr. Dennis' discretion, to authorize him either to see Dr. Chad Smalley or to provide him with a panel of orthopedic surgeons . Polymer was also ordered to pay for the medical treatment Mr. Dennis received from Starr Regional and Doctors Express. At the July 13, 2016 hearing, the Court took judicial notice of the testimony heard and exhibits admitted into evidence at the prior expedited hearing. See Hughes v. New Life Dev. Corp., 387 S.W.3d 453 , 457 n. l (Tenn . 20 12), holding, "we are pennitted to take judicial notice of the facts from earlier proceedings in the same action ." Mr. Dennis sustained a right-knee injury on June 3, 2015, while on the premises of Polymer during a break. Immediately following the accident, Mr. Dennis received emergency treatment at tarr R gional \iV]l re Dr. Da id Childress diagnosed a right-knee sprain, right shoulder sprain. and a chest wall contusion. (Ex. 2. Nov. 20,2015 hearing.) 3 Dr. Childress instructed Mr. Dennis to use crutches as needed and restricted him to no prolonged standing or walking. !d.

Polymer authorized Mr. Dennis to go to Doctors Express, where he saw Dr. Victoria Folsom on June 4, 2015. (Ex. 3. Nov. 20, 2015 hearing.) She ordered a right- knee MRI and took Mr. Dennis completely off work. !d. Upon receipt of the MRI report on June 5, 2015, Dr. Folsom initialed the following handwritten note: "Tom lateral meniscus, possible medial too. Diagnostic changes of the right knee large amount of fluid. Refer to ortho." !d. On the same day, Dr. Folsom saw Mr. Dennis and advised him of her diagnosis of a meniscal tear and orthopedic referral. !d. Mr. Dennis testified his understanding was that Dr. Folsom continued to keep him off work. Although Mr. Dennis subsequently selected Dr. Chad Smalley from a panel, Polymer denied his claim before his scheduled appointment. (Ex. 3.)

Mr. Dennis received no additional medical treatment for his right-knee injury until approxiinately ten months after his June 5, 2015 appointment with Dr. Folsom. After the Court issued its Order on December 18, 2015, the parties advised the Court at a February 24, 2016 status hearing that Polymer offered Mr. Dennis a panel of orthopedic surgeons prior to receiving communication from him as to whether he wanted to see Dr. Smalley or to receive a panel in order to achieve compliance with the Order. Mr. Dennis initially selected Dr. Reddish from the panel offered. (Ex. 3.) However, he subsequently decided the panel was invalid after Dr. Reddish's office infonned Mr. Dennis that Dr. Reddish did not accept workers' compensation patients. (Ex. 3.) At the February 24, 2016 status hearing, Polymer agreed to authorize and schedule an appointment with Dr. Smalley at Mr. Dennis' request. However, due to an apparent scheduling mishap within Dr. Smalley's office, Mr. Dennis saw Dr. Matthew Bernard instead of Dr. Smalley. Polymer introduced into evidence Dr. Bernard's March 16, 2016 office note for the limited purpose of impeachment.

By agreement of the parties, Mr. Dennis saw Dr. John Gracy, an orthopedic surgeon, on April21, 2016. Regarding Mr. Dennis' right-knee medial meniscus tear and complex lateral meniscus tear, Dr. Gracy opined that those diagnoses were "the result of accident that arose primarily out of and in the course of employment." (Ex. 2.) He opined the right-knee osteoarthritis was not work-related. !d. At that time, Dr. Gracy recommended an arthroscopy with meniscectomy, ordered physical therapy, and assigned

3 Unless otherwise specified, the exhibits cited came into evidence at the July 13, 2016 expedited hearing.

2 work restrictions. !d. Dr. Gracy restricted Mr. Dennis to a sitting job with his foot/leg elevated; alternating sitting/standing; and, walking short distances with his crutches. !d.

After Polymer authorized the recommended surgery on May 2, 2016, Dr. Gracy changed Mr. Dennis' restrictions the following day. On May 3, 2016, Dr. Gracy restricted Mr. Dennis to sedentary work; no climbing stairs, ladders or poles; must use crutches; and "no driving after surgery (5/23/16) until post-op visit (6/2116)." !d. Dr. Gracy perfonned the arthroscopy with meniscectomy on May 23, 2016. !d. At Mr. Dennis' post-op visit on June 2, 2016, Dr. Gracy advised Mr. Dennis "that normal post op recovery from a knee scope is 6-8 weeks and after that most of his pain would probably be related to his underlying arthritis (not work related)." !d. At that point, Dr. Gracy released Mr. Dennis to return to work to a sitting job with his foot/leg elevated. !d. Dr. Gracy also advised Mr. Dennis to wean from his crutches to become full weight bearing. !d. At Mr. Dennis' last visit with Dr. Gracy on June 30, 2016, he again advised Mr. Dennis to wean from his crutches and kept his restrictions the same.

At the expedited hearing, the testimony of Mr. Dennis and Ralph Brett, the owner of Polymer, was somewhat consistent regarding discussions about Mr. Dennis' return to work. Both were uncertain about the timeframes regarding discussions between Mr. Dennis and Mr. Brett and/or his human resource person. Mr. Dennis testified Mr. Brett told him, "We will accommodate you," but gave him no specifics. Mr. Dennis also stated there was another offer for him to return to work in January 2016 or after. He was told, "We have jobs for you," but nothing specific was discussed.

Likewise, Mr. Brett testified Polymer made offers of work to Mr. Dennis. He stated he believes Polymer can accommodate Mr. Dennis with several jobs because it has "numerous people on crutches." However, Mr. Brett acknowledged he has not reviewed Mr. Dennis' medical records. Mr. Brett also recalled asking Mr. Dennis approximately three to four months ago "when [Mr. Dennis] was coming back to work."

Mr. Dennis discussed the reasons why he has not yet attempted to return to work at Polymer. First, there was a great deal of testimony regarding the fact that he would have difficulty going up and down multiple stairs with crutches, and there are steps leading into most of the building entrances. (Ex.

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914 S.W.2d 884 (Tennessee Supreme Court, 1995)
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2016 TN WC 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennis-jr-robert-v-polymer-components-tennworkcompcl-2016.