Cole, Giles v. YRC, Inc. ( 2021 )

FILED
Apr 28, 2021
09:49 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
GILES COLE, ) Docket No. 2016-08-0935
Employee, )
v. )
YRC, INC., ) State File No. 63710-2016
Employer, )
And )
OLD REPUBLIC INS. CO., ) Judge Allen Phillips
Carrier. )
COMPENSATION ORDER FOR MEDICAL BENEFITS
This case came before the Court on March 31, 2021, for a Compensation Hearing.
Mr. Cole requested benefits for injuries to his head and back that he related to a September
23, 2015 accident. YRC contended the alleged injuries were not work-related. For the
following reasons, the Court holds Mr. Cole is entitled to future medical benefits for his
head injury but no other workers’ compensation benefits.
History of Claim
Mr. Cole worked for YRC as a truck driver. On September 23, 2015, he was
involved in an accident when his truck rolled over. YRC accepted the claim and provided
medical benefits, including a panel from which Mr. Cole selected Dr. Bonnie Randolph.
Dr. Randolph, an occupational medicine physician, first saw Mr. Cole the day after
the accident. Mr. Cole complained of pain in his head and right hand, and Dr. Randolph
noted contusions to those body parts. In addition to the contusions, Dr. Randolph diagnosed
a concussion with no loss of consciousness. She recommended a CT scan of his head,
which was normal.
1
At each of four later visits, Dr. Randolph maintained her diagnosis and, because of
Mr. Cole’s persistent complaints of headaches, recommended an MRI and a neurology
referral. The MRI showed sinusitis, cerebral atrophy, and small vessel disease of the brain.
Based on those findings, Dr. Randolph discontinued the neurology referral but instead told
Mr. Cole to see his primary care physician for the sinusitis. In Dr. Randolph’s opinion,
sinusitis was “most likely” causing his headaches, and she released him at maximum
medical improvement on November 20.
Mr. Cole followed Dr. Randolph’s advice and saw his primary care physician, Dr.
Oliver Hardy, in December. Dr. Hardy noted a laceration on Mr. Cole’s head and diagnosed
“post-concussion syndrome.” Over the next two months, Dr. Hardy added diagnoses of
sleep apnea, a hernia, insomnia, and hyperlipidemia. Dr. Hardy restricted Mr. Cole from
work but did not indicate any causal relationship between the restriction and the accident.
Representing himself, Mr. Cole requested an Expedited Hearing where he claimed
injuries to his head, back, and legs. He asked that the Court order YRC to pay Dr. Hardy’s
bills, contending that he saw him only because YRC stopped paying Dr. Randolph;
however, he offered no proof of the amount of the bills. He wanted temporary disability
benefits because Dr. Hardy restricted him from work, but he offered no proof of a causal
relationship between that restriction and the accident. Mr. Cole also conceded during cross-
examination that not all of his problems were related to the accident. YRC provided
evidence through Kevin English, its claims handler, that it never refused to authorize Dr.
Randolph to treat Mr. Cole or to pay her bills.
Based on that evidence, the Court held Mr. Cole likely would not prevail at a hearing
on the merits because Dr. Randolph did not relate Mr. Cole’s headaches to the accident.
Because she was the panel-selected physician, her unrebutted opinion was presumed
correct. See Tenn. Code Ann. § 50-6-102(14)(E) (2020).
After the denial, Mr. Cole obtained counsel, who later non-suited the case. After
refiling, the parties obtained medical proof and proceeded to this Compensation Hearing.
In support of his position, Mr. Cole introduced the deposition of Dr. Samuel Chung,
a physical medicine specialist and board-certified independent medical examiner. Dr.
Chung reviewed the records of Dr. Hardy and providers to whom Dr. Hardy referred Mr.
Cole for testing. Dr. Chung did not review records from Dr. Randolph or Campbell Clinic
Orthopedics.
At an August 16, 2018 office visit, Mr. Cole told Dr. Chung that he injured the “top
of his head and lower back” in the accident. Regarding the head injury, he told Dr. Chung
he experienced significant headaches in the area where he struck his head. He stated he
experienced memory loss, difficulty concentrating and dizziness. Mr. Cole said he still had
2
problems with short term memory, and Dr. Chung described his problem-solving and
concentration as “still somewhat delayed and affected.”
Dr. Chung performed a battery of tests to evaluate Mr. Cole’s mental status. Based
on the testing, Dr. Chung said Mr. Cole exhibited mild cognitive impairment, which Dr.
Chung related to the concussion and assigned a five-percent whole-person impairment.
As to the back injury, Dr. Chung performed a complete physical evaluation, which
indicated an ongoing right lumbar radiculopathy. He explained the accident aggravated Mr.
Cole’s degenerative back conditions and caused him to suffer a twelve-percent impairment
to the body.
Dr. Hardy, Mr. Cole’s primary care physician, died before the parties could depose
him, but the parties offered his records. As relevant here, the records included complaints
of low-back pain beginning in late 2016 and described by the doctor as degenerative,
consistent with the findings of a lumbar MRI he recommended. Additionally, a letter to
Mr. Cole’s counsel indicated Mr. Cole initially exhibited symptoms of disorientation,
dizziness, and problems with memory and concentration, but that they “resolved over
time.” Dr. Hardy “suggest[ed] appealing his case [apparently referencing the expedited
hearing order], as there certainly should not be any denial of the accident sustained
concussion [.]”
The parties also offered the records of Campbell Clinic Orthopedics. Those dealt
primarily with an unrelated knee injury but also included an August 8, 2016 note stating
Mr. Cole complained of low-back pain beginning in the “last couple of months” and
without any traumatic event. Multiple notes regarding the evaluation of his back pain did
not mention the accident, but instead the providers recorded degenerative problems of the
lumbar spine. The records noted that Mr. Cole was alert and oriented on multiple visits.
For its medical proof, YRC introduced the deposition of Dr. Randolph. She
confirmed he reported only head and right-hand pain on the day after the accident.
Otherwise, Dr. Randolph’s “review of systems” was completely negative, including no
dizziness, forgetfulness, confusion, mood change or any musculoskeletal findings. Dr.
Randolph said Mr. Cole could return to work without restrictions as of the first visit, a
status she maintained throughout her course of treatment. She explained the later visits as
described in her records. Dr. Randolph found Mr. Cole suffered no permanent impairment
but testified he could return if needed.
YRC also offered the deposition of Dr. Fereidoon Parsioon, a neurosurgeon, who
evaluated Mr. Cole twice at YRC’s request. First, on November 15, 2018, Dr. Parsioon
concentrated on the head injury. He took a history of the accident, noting that Mr. Cole
said he did not lose consciousness, but he still complained of daily headaches. His
3
neurological examination was normal. Dr. Parsioon noted that Mr. Cole did not report
memory loss or disorientation to either Dr. Randolph or Dr. Hardy. Dr. Parsioon believed
any headaches from the accident should have resolved and that they “could very well be
related to sinusitis.” However, he did say Mr. Cole likely suffered a “minor to mild” head
injury in the accident, and he agreed with Dr. Randolph that Mr. Cole reached maximum
medical improvement on November 20, 2015, with no impairment.
Dr. Parsioon’s second visit with Mr. Cole on July 19, 2020, concentrated on the
back injury. In that regard, Mr. Cole told Dr. Parsioon he had no prior back problems.
Conversely, Dr. Parsioon testified that Campbell Clinic records from 2014 noted a history
of back pain; thus, he called Mr. Cole’s statement that he had no previous problems “false.”
Based on his record review, Dr. Parsioon characterized Mr. Cole’s back complaints as
chronic and unrelated to the accident. He assessed no impairment.
At the Compensation Hearing, Mr. Cole testified he struck his right side when the
truck turned over, injuring his head, back and neck. However, on cross-examination, Mr.
Cole said he did not recall when his back started hurting. Nevertheless, he claimed he had
no prior problems with headaches, concentration, or his back before the accident. As to his
current condition, Mr. Cole stated he could no longer drive a truck, a job he did for thirty
years, and he understood that Dr. Hardy said he could no longer drive. Mr. Cole said he
has trouble sleeping, and he cannot lift anything or perform tasks around his house. He still
has pain in his knees and back and used a walker in the courtroom.
Mr. Cole claimed Dr. Hardy restricted him from work and relied on that opinion for
his demand for temporary total disability. However, he did not articulate the exact
timeframe requested. As to permanent disability, Mr. Cole claimed he was totally disabled
or, alternatively, that he should receive the impairment assessed by Dr. Chung.
Mr. English testified that YRC authorized Dr. Randolph and paid all of her bills.
Findings of Fact and Conclusions of Law
At a Compensation Hearing, Mr. Cole must establish all elements of his case by a
preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2020). Specifically, he
must show that his alleged injuries resulted from a specific incident, and they arose
primarily out of his employment. The injuries arise primarily out of the employment only
if Mr. Cole shows, to a reasonable degree of medical certainty, that the incident contributed
more than fifty percent in causing them. “Shown to a reasonable degree of medical
certainty” means that, in the opinion of the physicians, the injuries were more likely than
not caused by the incident when considering all causes. Tenn. Code Ann. § 50-6-
102(14)(A)-(D).
4
Here, Mr. Cole established a specific incident occurred on September 23, 2015.
However, the dispositive question is whether his alleged head and back injuries arose
primarily out of his employment and, if they did, whether they caused any disability,
temporary or permanent. The Court will address the two alleged injuries in turn.
Head injury
Mr. Cole relied upon Dr. Chung’s opinions; YRC on Drs. Randolph and Parsioon.
To determine which opinion is correct, the Court may consider the qualifications of the
experts, the circumstances of their evaluation, the information available to them, and the
evaluation of the importance of that information by the other experts. Smith v. TrustPoint
Hospital, LLC, 2021 TN Wrk. Comp. App. Bd. LEXIS 1, at *19 (Jan. 6, 2021). Because
Dr. Randolph was the panel physician, her opinions are afforded a presumption of
correctness subject to rebuttal by a preponderance of the evidence. Tenn. Code Ann. § 50-
6-204(k)(7).
First, as to qualifications, the Court considers Drs. Chung and Randolph on equal
footing. Dr. Chung is a board-certified, independent medical examiner who specializes in
physical medicine, and Dr. Randolph was practicing occupational medicine at the time she
treated Mr. Cole. In contrast, Dr. Parsioon is a neurosurgeon who specializes in the
treatment of brain injuries and the central nervous system. Given his specialty, the Court
finds the qualifications of Dr. Parsioon superior to the other experts.
Second, as to the circumstances of their evaluations, both Drs. Chung and Parsioon
evaluated Mr. Cole for purposes of litigation three years after the accident; thus, their
opinions are afforded equal weight. Conversely, Dr. Randolph saw Mr. Cole immediately
after the accident and provided treatment on several occasions. Thus, the Court finds this
factor supports Dr. Randolph.
Third, the Court looks to the information available to the experts. In that regard, all
three took a history of the accident, knew of the CT and MRI results, and examined him.
These facts elevate none of the experts above the others. However, Dr. Randolph saw Mr.
Cole shortly after the accident, which allowed her to assess his condition in the immediate
aftermath. Thus, the Court finds this factor supports Dr. Randolph.
Finally, the importance of the information available to the experts supports Dr.
Parsioon. He explained the head injury in the most convincing way. Namely, he noted that
Mr. Cole did not report problems with memory or disorientation to either Dr. Randolph or
Dr. Hardy. Likewise, Dr. Parsioon found none of the problems recorded by Dr. Chung. The
Court notes the Campbell Clinic records also documented normal alertness and orientation.
In short, Dr. Parsioon ultimately described Mr. Cole’s head injury as minor and that it
caused no permanent impairment.
5
Taking the evidence in totality, the Court finds Mr. Cole sustained a concussion as
a result of the accident. Dr. Randolph found he did, and the proof does not rebut that
opinion. Dr. Chung agreed, and Dr. Hardy also diagnosed post-concussion syndrome. Dr.
Parsioon agreed Mr. Cole sustained a mild head injury.
However, as to impairment, Dr. Randolph assessed none, and Dr. Parsioon agreed.
As Dr. Randolph is presumed correct, and Dr. Parsioon corroborated her opinion, the Court
finds Mr. Cole did not rebut those impairment opinions through Dr. Chung and holds he
sustained no permanent disability due to the head injury. See Tenn. Code Ann. § 50-6-
204(k)(7).
Although the head injury caused no impairment, YRC remains responsible for
future medical treatment of it. Tenn. Code Ann. § 50-6-204(b)(1); Barron v. State Dep’t of
Human Servs., 184 S.W.3d 219, 223 (Tenn. 2006); Stephens v. Henley’s Supply & Indus.,
Inc., 2 S.W.3d 178, 179-180 (Tenn. 1999). Dr. Randolph shall remain Mr. Cole’s
authorized physician for his head injury.
As to temporary total disability, Mr. Cole must show 1) he became disabled from
working due to a compensable injury; (2) a causal connection between the injury and his
inability to work; and (3) the duration of disability. Jones v. Crencor Leasing and Sales,
2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Here, Mr. Cole contended
he should receive temporary disability benefits for the period that Dr. Hardy restricted him.
However, the exact time frame was unclear from the records and, moreover, Dr. Hardy’s
records do not establish a causal connection to the accident by a preponderance of the
evidence when considering all of the expert opinions. Thus, the Court cannot award these
benefits due to the head injury.
Back injury
The back injury is more straightforward. Dr. Randolph noted no history of a back
injury when she saw Mr. Cole immediately after the accident. Neither did Dr. Hardy one
month later. The 2014 Campbell Clinic record alluded to by Dr. Parsioon is not in the
indexed records offered by the parties. However, a Campbell Clinic note dated August 8,
2016, records that Mr. Cole complained of low-back pain beginning in the “last couple of
months,” long after the accident, and further that he denied any traumatic event. Doctors
there later diagnosed degenerative changes, consistent with Dr. Parsioon’s opinion that the
back problems were chronic. Thus, the Court finds the evidence preponderates against a
finding that the alleged back injury is causally related to the accident and denies Mr. Cole’s
request for any workers’ compensation benefits because of it.
IT IS, THEREFORE, ORDERED as follows:
6
1. The Court denies Mr. Cole’s request for disability benefits.
2. YRC shall provide Mr. Cole future medical benefits under Tennessee Code
Annotated section 50-6-204 (a)(1)(A) for the September 23, 2015 concussion.
3. YRC shall pay the $150.00 filing fee to the Clerk within five business days after
this order becomes final under Tennessee Compilation Rules and Regulations 0800-
02-21-.06 (August, 2019).
4. YRC shall prepare and submit to the Court Clerk a Statistical Data Form (SD2)
within ten business days of this order becoming final.
5. Unless appealed, this order shall become final thirty days after issuance.
ENTERED April 28, 2021.
______________________________________
Judge Allen Phillips
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Deposition of Dr. Samuel Chung
2. Deposition of Dr. Fereidoon Parsioon
3. Deposition of Dr. Bonnie Randolph
4. Collective Medical Records
5. Transcript excerpt from Expedited Hearing
6. C-42 Choice of Physician Forms
7. Wikipedia article re: “Sinusitis” (Identification only)
8. Healthline article re: Allergy-induced Vertigo (Identification only)
9. PubMed article re: Vertigo from Inflammation of Sinuses (Identification only)
10. Ashford Clinic article re: Dizziness and Your Sinuses (Identification only)
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice-March 1, 2018
3. Request for Scheduling Hearing
7
4. Scheduling Order
5. Motion to Continue Compensation Hearing-July 20, 2018
6. Employer’s Response to Motion to Continue
7. Order of Continuance
8. Second Scheduling Order-January 6, 2021
9. Post-Discovery Dispute Certification Notice
10. Pre-Compensation Hearing Statement
11. YRC’s Trial Brief
12. YRC’s Witness and Exhibit List
13. Mr. Cole’s Witness and Exhibit List
CERTIFICATE OF SERVICE
I certify that a copy of this Compensation Order was sent as indicated on April 28,
2021.
Name Email Service Sent To:
Christopher L. Taylor, X ctaylor@taylortoon.com
Employee’s Attorney sreynolds@taylortoon.com
Stephen K. Heard, X skheard@cclawtn.com
Employer’s Attorney ealimon@cclawtn.com
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
8
Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the Clerk
of the Court of Workers’ Compensation Claims within thirty calendar days of the date the
compensation hearing order was filed. When filing the Notice of Appeal, you must serve
a copy upon the opposing party (or attorney, if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at any
Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the alternative,
you may file an Affidavit of Indigency (form available on the Bureau’s website or any
Bureau office) seeking a waiver of the filing fee. You must file the fullycompleted
Affidavit of Indigency within ten calendar days of filing the Notice of Appeal. Failure to
timely pay the filing fee or file the Affidavit of Indigency will result in dismissal of
your appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar days of the filing of the
Notice of Appeal. The statement of the evidence must convey a complete and accurate
account of the hearing. The Workers’ Compensation Judge must approve the statement of
the evidence before the record is submitted to the Appeals Board. If the Appeals Board is
called upon to review testimony or other proof concerning factual matters, the absence of
a transcript or statement of the evidence can be a significant obstacle to meaningful
appellate review.
4. After the Workers’ Compensation Judge approves the record and the court clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. The appealing party
has fifteen calendar days after the date of that notice to submit a brief to the Appeals Board.
See the Practices and Procedures of the Workers’ Compensation Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate Procedure.
If neither party timely files an appeal with the Appeals Board, the trial court’s Order will
become final by operation of law thirty calendar days after entry. See Tenn. Code Ann. §
50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries-at-
work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________ Employer
Notice is given that ____________________________________________________________________ [List
name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’
Compensation Appeals Board (check one or more applicable boxes and include the date filestamped on
the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________ issued
by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 Employee Name: _______________________________________ Docket No.:
_____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
____________________________________________
__ [Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082