McCullough, Jonathan v. Tenneco Automotive , 2022 TN WC 52 ( 2022 )

FILED
Jul 08, 2022
01:53 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT COOKEVILLE
JONATHAN MCCULLOUGH, ) Docket No. 2021-04-0323
Employee, )
v. )
)
TENNECO AUTOMOTIVE, ) State File No. 92082-2021
Employer, )
and )
)
INDEMNITY INSURANCE CO. ) Judge Dale Tipps
OF NORTH AMERICA, )
Insurance Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
The Court held an Expedited Hearing on July 7, 2022, to determine whether Mr.
McCullough is entitled to medical and temporary disability benefits. The Court finds the
evidence does not support Mr. McCullough’s contention that his alleged workplace fall
was the primary cause of his current back symptoms. Therefore, the Court cannot hold
that he is likely to prevail at a hearing on the merits.
History of Claim
Mr. McCullough alleged he slipped and fell in the bathroom at work on October 1,
2021. He testified that a few minutes after returning to his job, his back began hurting.
Because he had a long history of back injuries, he felt he needed medical attention, so he
reported the injury to his supervisor and went to the emergency room.
When Tenneco disputed the accident occurred as he described and denied the claim,
Mr. McCullough sought unauthorized treatment with Dr. Narendra Singh.
Neither party offered medical records as evidence, but Tenneco submitted a
questionnaire completed by Dr. Singh. In response to whether Mr. McCullough’s
treatment for his back complaints was primarily related to his work accident, Dr. Singh
checked “No.” He added, “It is my opinion that the majority of his spine complaints are
currently related to underlying degenerative changes and facet joint disease.”
At the conclusion of the hearing, Mr. McCullough requested medical treatment and
temporary disability benefits. Tenneco contended that Mr. McCullough was not entitled
to any benefits because he presented no medical proof that his employment was the primary
cause of his condition.
Findings of Fact and Conclusions of Law
For the Court to grant Mr. McCullough’s requests, he must prove he is likely to
prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2021); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar.
27, 2015).
To prove that his back condition is a compensable injury, Mr. McCullough must
show that it arose primarily out of and in the course and scope of his employment. This
includes the requirement that he must show “to a reasonable degree of medical certainty
that [the incident] contributed more than fifty percent (50%) in causing the . . . disablement
or need for medical treatment, considering all causes.” “Shown to a reasonable degree of
medical certainty” means that, in the opinion of the treating physician, it is more likely than
not considering all causes as opposed to speculation or possibility. Tenn. Code Ann. § 50-
6-102(14).
Applying this standard to Mr. McCullough’s claim, the Court has only one medical
causation opinion – Dr. Singh’s conclusion that his symptoms were not primarily caused
by his alleged work accident, but by his pre-existing condition. Without a contrary opinion,
the analysis ends, and the Court cannot find Mr. McCullough is likely to prove a
compensable claim.1 See Berdnik v. Fairfield Glad Cmty. Club, 2017 TN Wrk. Comp.
App. Bd. LEXIS 32, at *14-16 (May 18, 2017) (where an employer has presented expert
medical proof that the employee's condition is not work-related, the employee must present
expert medical proof that the alleged injury is causally related to the employment).
IT IS, THEREFORE, ORDERED as follows:
1. Mr. McCullough’s claims against Tenneco Automotive for medical and temporary
disability benefits are denied at this time.
2. This case is set for a Scheduling Hearing on September 14, 2022, at 9:30 a.m. You
1
Because the claim is denied on causation grounds, the Court will not address the dispute over the accident
details at this time.
must call toll-free at 855-874-0473 to participate. Failure to call might result in a
determination of the issues without your further participation. All conferences are
set using Central Time.
ENTERED July 8, 2022.
______________________________________
DALE TIPPS, JUDGE
Court of Workers’ Compensation Claims
Exhibits:
1. Mr. McCullough’s Rule 72 Declaration
2. Affidavit of Michael Howard (identification only)
3. Affidavit of Dallas Jones (identification only)
4. First Report of Injury
5. Dr. Narendra Singh’s responses to medical questionnaire
6. Wage Statement
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer’s Pre-Expedited Hearing Brief
5. Employer’s Exhibit List
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on July 8,
2022.
Name Certified Fax Email Service sent to:
Mail
Jonathan McCullough, X mcculloughjonathan8@gmail.com
Employee
Sarah H. Reisner, X sreisner@manierherod.com
Jasmyn McCalla, jmccalla@manierherod.com
Employer’s Attorneys
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, 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 seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
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 fee. You must file the fully-
completed 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 the 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. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business 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 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. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
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 file-
stamped 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