Moffitt, David v. Allied Metals Company ( 2017 )


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  •                                                                                       FILED
    December 15, 2017
    TN COURT OF
    WORKERS' COAIPENSi\TION
    CL . IDIS
    .
    Tim.e I :31 PM
    TENNESSEE BUREAU OF WORKERS' COMPENSATION
    IN THE COURT OF WORKERS' COMPENSATION CLAIMS
    AT KINGSPORT
    DAVID MOFFITT,                               )    Docket Number: 2016-02-0282
    Employee,                           )
    )
    v.                                           )
    )
    ALLIED METALS COMPANY,                       )    State File Number: 40249-2016
    Employer,                           )
    )
    and                                          )
    )
    FFVA MUTUAL INSURANCE CO.,                    )   Judge Brian K. Addington
    Insurance Carrier.                   )
    COMPENSATION HEARING ORDER
    This matter came before the Court on December 4, 2017, for a Compensation
    Hearing. The parties stipulated that Mr. Moffitt suffered a compensable lumbar injury on
    March 26, 2015. The central legal issue is the compensability of Mr. Moffitt's claim for
    a cervical injury on the same date. The Court finds Mr. Moffitt failed to prove the
    causation of his cervical injury. Therefore, the Court holds that Mr. Moffitt suffered a
    compensable lumbar injury for which he is entitled to permanent partial disability
    benefits, but he did not suffer a compensable cervical injury.
    History of Claim
    Mr. Moffitt worked as a welder at Allied Metals. On March 26, 2015, he stood on
    a table to help two co-workers bend metal. Once the process was over, he twisted and
    jumped to the ground. He testified he immediately felt pain in his right arm and low
    back. He told co-worker Roger Hensley that he hurt his back when he jumped off the
    table. Mr. Moffitt then told supervisor Bruce Hall that he injured his back and the pain
    travelled into his leg. Mr. Moffitt did not request medical treatment but finished his shift
    1
    and went home. Mr. Hensley and Mr. Hall disputed Mr. Moffitt's testimony that he
    complained of arm pain.
    The next morning Mr. Moffitt's wife called Mr. Hall and requested medical
    treatment for Mr. Moffitt. Allied's secretary directed Mr. Moffitt to pursue medical
    treatment at Medworks. Mr. Moffitt testified that he complained of hand pain during the
    examination that day, but the records reflect no mention of same. The records also
    reflected no treatment for neck or arm pain. Dr. Michael Anders focused treatment on his
    low back and diagnosed an acute low-back strain.
    Dr. Anders provided the following work restrictions: no lifting, pushing, or pulling
    over five pounds; no lifting, pushing, or pulling with either arm over five pounds; no
    work with the arms above shoulder level; no work with repetitive or prolonged forward
    bending or twisting; no work with repetitive or prolonged kneeling, squatting, or
    climbing; work must allow alternate sitting and standing; and an eight-hour a day work
    limit.
    Mr. Moffitt provided these restrictions to Allied and signed a form stating that he
    initially refused medical treatment. Supervisor Hall informed Mr. Moffitt that Allied
    would accommodate his restrictions and for him to request help if he needed it.
    Mr. Moffitt returned to work on March 30 and continued to work eight-hour shifts.
    Dr. Anders continued to reflect Mr. Moffitt's low-back pain, so Dr. Anders ordered a
    lumbar MRI. After continued complaints, Dr. Anders referred Mr. Moffitt to a spine
    specialist.
    Mr. Moffitt chose Dr. Richard Duncan from a panel of physicians. Dr. Duncan
    treated Mr. Moffitt only for low-back pain, and his records do not reference any arm pain
    at that time. Later, Dr. Duncan diagnosed spinal stenosis and placed Mr. Moffitt at
    maximum medical improvement on June 17, 2015. He assigned Mr. Moffitt a three-
    percent whole body impairment and continued his work restrictions.
    Mr. Moffitt's back pain worsened when he started working additional hours in
    June 2015. He went to Dr. Duncan's walk-in clinic on June 29, 2015, and requested
    something for relief of his low-back pain. He also reported occasional right-arm pain.
    Dr. Duncan noted the right-arm pain was not work-related but recommended physical
    therapy. Allied did not approve the physical therapy.
    Mr. Moffitt came to work on July 22, b~t his supervisor noticed he was in obvious
    pain, which appeared to prevent him from performing his light duty work. Mr. Hall told
    Mr. Moffitt to go home, take care of himself and to return to work when he was able.
    2
    Based on personal recommendations, Mr. Moffitt sought treatment from Dr.
    Morgan Lorio, who first saw Mr. Moffitt on July 24. Dr. Lorio's notes indicate that Mr.
    Moffitt injured his back and then "his neck started to bother him." He ordered an MRI,
    which indicated disc herniations at C4-5 and 6-7. Dr. Lorio fused both levels and
    continued treating Mr. Moffit until January 9, 2017. 1 Dr. Lorio later moved away.
    During his cervical treatment by Dr. Lorio, Mr. Moffitt sought additional lumbar
    treatment because he was unsatisfied with Dr. Duncan's opinion. Allied sent Mr. Moffitt
    to Dr. Jim Brasfield on October 12, 2015, for a second opinion for his low back
    complaints. Dr. Brasfield ordered a nuclear bone scan, which was normal. However, he
    determined Mr. Moffitt would benefit from a facet injection, which eased the pain for a
    few days. Dr. Brasfield last saw Mr. Moffitt on March 28, 2016, and recommended a
    back brace and radiofrequency lesioning.
    Mr. Moffitt's average weekly wage was $709.85, which provided· a $473.26
    compensation rate. Mr. Moffitt has not worked for any employer since July 22, 2015.
    Allied terminated Mr. Moffitt in November 2015 for absenteeism.
    Deposition Testimony
    Dr. Duncan testified that Mr. Moffitt originally complained of leg and lumbar
    pain. He placed Mr. Moffitt at maximum medical improvement on June 17, 2015, and
    assigned him three percent whole-body impairment. Later Mr. Moffitt came to Dr.
    Duncan's walk-in clinic with continued low-back pain and new right arm pain. Dr.
    Duncan determined Mr. Moffitt suffered a non-work-related cervical spondylosis without
    myelopathy. He recommended physical therapy for the cervical issues. Dr. Duncan
    indicated he had not thoroughly reviewed Dr. Brasfield's notes or Dr. Lorio's records
    prior to his deposition. Additionally, the ones presented to him during the deposition
    were not complete. Based on his review of Dr. Lorio's notes during the deposition, Dr.
    Duncan could not causally relate Mr. Moffitt's cervical fusion to the work incident. Dr.
    Duncan thought Mr. Moffitt's cervical injury occurred without a specific injury.
    Dr. Lorio assumed that Mr. Moffitt complained of right arm pain on the date he
    injured his low back. He performed a double-level cervical fusion and assigned Mr.
    Moffitt fifteen percent whole body impairment. He stated an MRI could indicate an
    acute injury, "Up to four months, maybe a little bit longer." During the deposition, he did
    not have all of his notes and the ones he had were incomplete, so parts of his testimony
    were from his recollection. He testified that someone with a herniated disc would feel
    pain within a couple of days. He related Mr. Moffitt's need for fusion surgery to the
    1
    Prior to his surgery by Dr. Lorio, Mr. Moffitt sought treatment at Bristol Regional Medical Center
    (BRMC) on August 22, 2015, for severe neck pain and right-sided numbness.
    3
    workplace accident. He felt restrictions Dr. Anders placed on Mr. Moffitt were in part
    due to a cervical injury.
    Dr. Brasfield acknowledged Allied only authorized him to treat Mr. Moffitt's
    lumbar complaints. He testified that a cervical disc herniation is very painful and patients
    often feel pain immediately or within two days. He noted that according to the medical
    records he had seen, Mr. Moffitt did not complain of arm pain until three months after the
    March 26 incident.
    Argument
    Mr. Moffitt argued that he complained of both arm and back pain on the date of
    injury. He contended the work restrictions in Dr. Anders' notes correspond to both
    lumbar and cervical issues. He asserted Dr. Duncan could not understand the issue and
    that Dr. Brasfield was not authorized to treat his cervical pain. He argued Dr. Lorio
    considered all the information available and that he is the only expert to render a
    thorough decision on the causation of his cervical complaints. As such, in addition to the
    permanent partial disability benefits for his three percent lumbar injury, he requested
    permanent partial disability of fifteen per ent to his whole body for his cervical injury.
    2
    He also sought payment of past medical treatment with Dr. Lorio. Additionally, Mr.
    Moftltt reque ·ted mil eage reimbursement, discretionary costs and temporary disability
    benefits from his last day of work until January 7, 2017. 3
    Allied argued that Mr. Moffitt injured only his lumbar spine in March 2015. It
    pointed to the lack of any reference to arm or neck pain in MedWorks' and Dr. Duncan's
    notes for three months following the accident. Allied claimed that Dr. Duncan, as the
    authorized treating physician, is presumed correct about causation and that Dr. Lorio's
    opinion is not sufficient to overcome the presumption. Allied acknowledged that Mr.
    Moffitt is entitled to permanent partial disability for his lumbar injury but requested the
    Court deny benefits for his cervical complaints.
    Findings of Fact and Conclusions of Law
    Mr. Moffitt bears the burden of proof on all essential elements of his claim and
    must establish by a preponderance of the evidence that he is entitled to the requested
    benefits. Willis v. All Staff, 2015 TN Wrk. Camp. App. Bd. LEXIS 42, at *18 (Nov. 9,
    2015); see also Tenn. Code Ann. § 50-6-239(c)(6) (2017) ("[T]he employee shall bear
    the burden of proving each and every element of the claim by a preponderance of the
    evidence.").
    2
    Mr. Moffitt did not submit any med ical bills fro m Dr. Lorio.
    3
    Mr. Moffitt did not submit mileage reimbursement documentation.
    4
    Prior to discussing the facts of the case, the Court notes that all the fact witnesses
    appeared credible. The physicians were equally qualified to render expert medical
    testimony. However, after a thorough review of the depositions, it is clear that Drs.
    Duncan, Lorio and Brasfield either did not have or thoroughly review the other
    physicians' notes before their deposition. 4 Thus, the attorneys asked the physicians to
    give opinions without providing them a complete picture of facts. As such, their opinions
    concerning each other's care or that of Dr. Anders is unpersuasive. In the end, Dr.
    Duncan's opinion is presumed correct on causation and Dr. Lorio's opinion failed to
    rebut Dr. Duncan's opinion by the preponderance of the evidence. See Tenn. Code Ann.
    § 50-6-102 (14)(E) (2015).
    Although Mr. Moffitt believes he told his co-workers as well as Drs. Anders and
    Duncan early in his treatment that his arm was hurting, the facts do not bear that out. His
    co-workers denied he mentioned it, and neither Dr. Anders' notes nor Dr. Duncan's early
    notes mention arm pain. Mr. Moffitt spent a significant amount of time trying to assert
    Dr. Anders' restrictions were at least in part cervical in nature, but he failed to present
    any testimony from Dr. Anders to support his theory. Rather, the proof indicated that Mr.
    Moffitt first complained of arm pain in the June 2015 walk-in appointment with Dr.
    Duncan, some three months after his injury. Dr. Duncan determined Mr. Moffitt's arm
    pain was not work-related.
    Dr. Lorio related Mr. Moffitt's arm pain to the work incident, but the Court is not
    persuaded by his opinion. His first note indicated Mr. Moffitt began to have neck pain
    after the back pain. Dr. Lorio testified that a person that suffered an injury like Mr.
    Moffitt had would feel pain within a few days. Mr. Moffitt, however, worked for three
    months until he .reported arm pain to Dr. Duncan.
    Dr. Brasfield agreed with Dr. Lorio that Mr. Moffitt would have felt arm pain
    from his cervical injury soon after the incident occurred. Based on the records he
    reviewed, Dr. Brasfield did not believe Mr. Moffitt injured his cervical spine when he
    injured his low-back.
    Mr. Moffitt asserted that pain from his lumbar injury masked the pain from his
    cervical until later. But in his case, he began feeling the pain three months later, when
    the experts stated the pain would have occurred almost immediately.
    The Court must use its discretion in accepting one expert opinion over another
    when faced with conflicting medical testimony and may consider whichever opinion
    contains the more probable explanation. Sanker v. Nacarato Trucks, Inc., 2016 TN Wrk.
    Comp. App. Bd. LEXIS 27, at *12 (July 6, 2016). Dr. Duncan's and Brasfield's
    4
    Dr. Duncan's records were hard to follow by date, and Dr. Lorio's records lacked all information
    contained in the originals.
    5
    testimony is more plausible. Taken as a whole, Dr. Lorio's causation opinion does not
    overcome the presumption given to Dr. Duncan.
    Thus, the Court holds Mr. Moffitt is entitled to temporary total disability benefits
    for his lumbar injury in the amount of thirteen and a half weeks or $6,3 89.0 1. Allied
    previously advanced $4056.52, leaving a remaining balance of $2,332.49. Mr. Moffitt's
    initial period of benefits began on June 18, 2015, and ended thirteen and a half weeks
    later on September 21, 20 15. On that date, he was still recovering from his cervical
    fusion surgery. Mr. Moffitt is not entitled to increased benefits because his non-work-
    related cervical injury caused his absences and subsequent termination from work. Allied
    provided Mr. Moffitt light-duty work until he was forced to seek treatment for his
    cervical injury.
    Alternative Findings of Fact
    Solely in the event that an appellate body finds error in the compensability holding
    and concludes Mr. Moffitt is entitled to benefits related to his cervical injury, the Court
    makes the following findings of fact for the purpose of judicial economy. 5
    Mr. Moffitt is entitled to temporary partial disability benefits from June 24, 2015,
    until January 9, 2017, which represents seventy-nine weeks and five days in the amount
    of $37,725.59. Mr. Moffitt is entitled to an additional award for permanent partial
    disability for his cervical injury in the amount of sixty-seven weeks of benefits (fifteen
    percent whole body impairment) or $31,708.42. Mr. Moffitt is entitled to future medical
    treatment for his cervical injury. Because Dr. Lorio moved from the area, Allied shall
    provide Mr. Moffitt a panel of physicians from which he shall choose an authorized
    physician. Mr. Moffitt is not entitled to payment of medical bills or mileage for
    treatment with Dr. Lorio because he did not make them an exhibit for the Court to
    consider.
    IT IS, THEREFORE, ORDERED as follows:
    1. Allied shall continue to provide Mr. Moffitt with medical treatment made
    reasonably necessary by the March 29, 2015 injury under Tennessee Code
    Annotated section 50-6-204(a)(l).  Dr. Richard Duncan is designated the
    authorized treating physician.
    5
    See Cunningham v. Shelton Sec. Serv., 
    46 S.W.3d 131
    , 137-138 (Tenn. 2001). (Trial courts should "hear
    the entire case and make appropriate findings of fact, and alternative findings when necessary, for
    appellate review.")
    6
    2. Allied shall pay Mr. Moffitt permanent partial disability benefits for a three-
    percent impairment rating to the body as a whole in the amount of $6,389.01.
    Allied is given a credit of $4,056.52, leaving a remaining balance of $2,332.49.
    Mr. Moffitt is not entitled to an increased award of permanent benefits.
    3. Mr. Roberts, Mr. Moffitt's attorney, is entitled to an attorney fee of twenty percent
    of Mr. Moffitt's total award, or $1,277.80, plus expenses, to be paid from Mr.
    Moffitt's award.
    4. Costs of $150.00 are assessed against Allied under Tennessee Compilation Rules
    and Regulations 0800-02-21-.07 (20 16), to be paid within five days of this Order
    becoming final.
    5. Allied shall prepare and file a statistical data form within ten business days of the
    date of this Order under Tennessee Code Annotated section 50-6-244.
    6. Absent an appeal of this order by either party, the order shall become final thirty
    days after issuance.
    It is so ORDERED.
    ENTERED this the 15th day of December, 2017.
    Is/ Brian K. Addington
    BRIAN K. ADDINGTON, JUDGE
    Court of Workers' Compensation Claims
    Exhibits
    1.   Deposition of Dr. Richard Duncan and Collective Exhibits
    2.   Deposition of Dr. Morgan Lorio and Collective Exhibits
    3.   Deposition of Dr. Jim Brasfield and Collective Exhibits
    4.   Mr. Moffitt's 2015 attendance record
    5.   Worker's Compensation Medical Treatment Refusal Form
    6.   March 27, 2015 absence report
    7
    Technical Record
    1. Petition for Benefit Determination
    2. Dispute Certification Notice
    3. Request for Expedited Hearing
    4. Allied's Response to Expedited Hearing
    5. Motion for Partial Summary Judgment
    6. Statement of Undisputed Facts in Support of Partial Summary Judgment
    7. Motion for Extension of Time
    8. Agreed Order to Continue Hearing
    9. Mr. Moffitt's Response to ER's Statement of Facts
    10. Mr. Moffitt's Concise Statement of Additional Material Facts
    11. Mr. Moffitt's Response to Motion for Summary Judgment
    12. Allied's Reply to Mr. Moffitt's Response to Motion for Summary Judgment
    13. Allied's Response to Concise Statement of Additional Material Facts
    14. Order Denying Allied's Motion for Partial Summary Judgment
    15. Post Discovery Dispute Certification Notice
    16. Request for Scheduling Hearing
    17. Scheduling Hearing Order
    18. Allied's Motion for Extension of Time
    19. Order Granting Motion for Extension of Time
    20. Mr. Moffitt's Pre-Hearing Statement
    21. Mr. Moffitt's Witness and Exhibit List
    22. Notice of Filing Deposition of Dr. Lorio and Dr. Brasfield
    23. Notice of Filing of Deposition of Mr. Moffitt
    24. Motion In Limine-Dr. Lorio
    25. Motion In Limine-Dr. Duncan
    26. Allied's Witness and Exhibit List
    27. Medical Records Submitted by Allied
    28. Allied's Pre-Hearing Brief (Incl. Exhibits and Case Law)
    29. Notice of Filing of Deposition of Dr. Brasfield
    30. Allied's Supplement to Pre-Hearing Brief
    31. Mr. Moffitt's Response to Motion in Limine-Dr. Lorio
    32. Mr. Moffitt's Response to Motion in Limine-Dr. Duncan
    8
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the Compen ation Hearing Order
    was sent to the following recipients by the following methods of servic on thi the 15th
    day of December, 2017.
    Name                      Certified   Fax        Via Service sent to:
    Mail                 Email
    Larry V. Roberts, Esq.,                               Iarry .ro he rtsroiJ (lrryv robcrts. com
    Employee's Attorney                               X   !'i tlsan .cll ioll(a·larrvvrobcrts.com
    Brent Laman, Esq.,
    Employer's attorney                               X      brlaman@.mijs.com
    RUM, COURT CLERK
    Court of orkers' Compensation Claims
    WC.CourtClerk@tn.gov
    9
    

Document Info

Docket Number: 2016-02-0282

Judges: Brian K. Addington

Filed Date: 12/15/2017

Precedential Status: Precedential

Modified Date: 1/10/2021