Hornal, Jeff v. Thunder Ridge Transport, Inc.

2018 TN WC 34
CourtTennessee Court of Workers' Compensation Claims
DecidedMarch 27, 2018
Docket2017-05-1189
StatusPublished

This text of 2018 TN WC 34 (Hornal, Jeff v. Thunder Ridge Transport, Inc.) 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
Hornal, Jeff v. Thunder Ridge Transport, Inc., 2018 TN WC 34 (Tenn. Super. Ct. 2018).

Opinion

FILED Mar 27,2018 03:08 PM(ET) TENNESSEE COliRT OF WORKERS' COMPENSATION CLAIMS

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

Jeff Hornal, ) Docket No. 2017-05-1189 Employee, ) v. ) Thunder Ridge Transport, Inc., ) State File No. 47830-2017 Employer, ) And ) Liberty Insurance Corporation, ) Judge Thomas Wyatt Carrier. )

EXPEDITED HEARING ORDER FOR MEDICAL AND TEMPORARY DISABILITY BENEFITS

This claim carne before the Court on March 21,2018, on JeffHomal's Request for Expedited Hearing. Mr. Homal sought medical and temporary disability benefits, raising the central issue of whether he would likely prevail at a hearing on the merits in establishing that his right-knee injury arose primarily out of and in the course and scope of employment. For the reasons set forth below, the Court holds Mr. Hornallikely to prevail at a hearing on the merits and awards Mr. Homal medical benefits and some of the requested temporary disability benefits.

History of Claim

Thunder Ridge Transport, Inc. hired Mr. Hornal as a truck driver in November 2016. He consistently worked six days per week before the date of his injury and did not experience right-knee pain in performing his duties.

Mr. Homal'sjob included pushing heavy carts of mail into and out of a truck. On June 19, 2017 a wheel of a cart became stuck, causing him to abruptly stop his stride. When this occurred, Mr. Hornal's right knee "popped" and became painful. He reported his injury the next day, and Thunder Ridge authorized him to seek emergent care at Centennial Medical Center.

1 Mr. Homal told providers at Centennial that he injured his right knee at work 1 while pushing a cart. He denied previous musculoskeletal conditions. Following an x- ray, the emergency physician dismissed Mr. Hornal with crutches and diagnosed arthritis and joint effusion in the right knee.

Mr. Hornal saw Dr. Chris Kromer for authorized treatment on June 28. Dr. Kromer ordered an MRI of the right knee, which revealed a torn meniscus and arthritis. Dr. Kromer placed him on restricted duty and prescribed orthopedic care. Thunder Ridge provided a panel, and Mr. Hornal selected Dr. Allen Anderson. He did not work in the interim between seeing Drs. Kromer and Anderson.

Mr. Hornal saw Dr. Anderson on July 7. After reviewing the diagnostic studies, he assessed Mr. Hornal with "a constellation of problems, which are severe. He has recently had a torn meniscus. Secondly, he has preexisting chondral problems or degenerative changes in the medial side of his knee and a varus deformity." Dr. Anderson injected Mr. Hornal's knee but noted his treatment options included knee replacement. Dr. Anderson prescribed medication and a knee brace, which Mr. Hornal currently uses. Dr. Anderson addressed his return to work on and after July 7 with the following note: "Unable to work till: Follow Up appointment."

Mr. Hornal did not work between July 7 and his next appointment with Dr. Anderson of September 29. Dr. Anderson did not note following the second visit that he took Mr. Hornal off work or placed restrictions on his activities. However, Mr. Hornal testified that he did not return to work because his right-knee pain prevented him from performing his duties at Thunder Ridge. Mr. Hornal stayed out of work until January 4, when he took a less strenuous, lower-paying truck-driving job for another company.

Returning to his treatment with Dr. Anderson, the carrier's adjuster emailed Dr. Anderson the following inquiry on October 5, 2017: "You mentioned in your report that JeffHornal ... has varus deformity and chondral problems which are sever [sic] as well as a torn meniscus. Is the primary cause of his current disability over 51% due to the work injury?" Dr. Anderson responded by checking the "No" option without further explanation.

Mr. Hornal testified that Thunder Ridge "shut everything down" after receiving Dr. Anderson' s response. He stated that Thunder Ridge did not authorize further care with Dr. Anderson, nor did it pay for the emergency visit to Centennial. Mr. Hornal also

1 All other providers whom Mr. Homal saw for his right-knee injury recorded a similar history of injury. 2 Dr. Anderson is now deceased, but Thunder Ridge has not offered Mr. Hornal another panel despite the doctor's passing.

2 asserted that Thunder Ridge did not pay temporary disability benefits from June 20, 2017, to January 3, 2018.

After Thunder Ridge's denial of his claim, Mr. Homal consulted an unauthorized orthopedist, Dr. James Wiesman. Dr. Wiesman recorded that Mr. Homal was "adamant" that he never experienced right-knee pain before suffering the injury at Thunder Ridge. Dr. Wiesman diagnosed a tear of the medial meniscus and arthritic changes in his right knee. Based on Mr. Homal's history, Dr. Wiesman stated, "[i]n my opinion the problem that Mr. Homal is having with his right knee at this time is greater than 51%3 due to the work injury that occurred on 6-20-17."

In a later affidavit, Dr. Wiesman stated, "it is my opinion the injury i.e. meniscus tear, arose primarily out of and in the course and scope of his employment when his right knee 'popped' while pushing a cart full of mail as described on or about 6/20/17." Dr. Weisman also stated, "[t]o the extent that the abnormal condition of his right knee is an aggravation of a preexisting condition, it is my opinion that the aggravation of his preexisting condition arose primarily out of and in the course and scope of his opinion as described above." Dr. Wiesman recommended an arthroscopic meniscectomy.

Findings of Fact and Conclusions of Law

Mr. Homal has the burden of proof on the essential elements of his claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 20 15). However, at an expedited hearing, he can establish his eligibility for benefits by coming forward with evidence from which the Court can determine he is likely to prevail at a hearing on the merits in establishing entitlement to benefits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

To obtain an interlocutory order for benefits, Mr. Homal must show he will likely prevail at a hearing on the merits in establishing that he suffered an injury "arising primarily out of and in the course and scope of employment[.]" Tenn. Code Ann. § 50-6- 102(14)(A) (2017). If his injury involves an aggravation of a preexisting condition, he must show under the same standard ''that the aggravation arose primarily out of and in the course and scope of employment." /d.

Under Tennessee Workers' Compensation Law, "[a]n 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). Mr. Homal must satisfy the expedited-hearing burden of proof in

3 The Court notes that both doctors applied the same incorrect percentage in considering the causation of Mr. Homal's injury.

3 establishing the work-relatedness of any suggested treatment for his right-knee injury. Tenn. Code Ann. § 50-6-102(14)(C).

The Court holds that Mr. Homal carried his burden and, thus, is entitled to medical benefits and some of the temporary disability benefits he sought.

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Related

§ 50-6
Tennessee § 50-6
§ 50-6-102
Tennessee § 50-6-102(14)(C)

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2018 TN WC 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hornal-jeff-v-thunder-ridge-transport-inc-tennworkcompcl-2018.