Dennis, Christopher v. Memphis Light, Gas & Water , 2019 TN WC 159 ( 2019 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
Christopher Dennis, Docket No.: 2018-08-1446
Employee,
v. State File No.: 78312-2018
Memphis Light, Gas & Water,
Employer. Judge Deana Seymour
EXPEDITED HEARING ORDER
The Court convened an Expedited Hearing on September 23, 2019, to determine
Christopher Dennis’s entitlement to additional medical and temporary disability benefits
stemming from a work-related truck accident. MLGW denied the additional benefits,
contending Mr. Dennis’s ongoing symptoms are not primarily related to the accident.
Based on the medical proof, the Court agrees and holds Mr. Dennis is not likely to prevail
at trial on his claim for additional benefits at this time. His request is denied.
History of Claim
Mr. Dennis worked as an operator for MLGW. He claimed injuries to his wrists,
right shoulder, and low back from an accident in an MLGW truck on September 21,
2018. According to Mr. Dennis, he was a restrained passenger in the truck that hit a pole.
On impact, he braced himself with his hands against the dash and experienced pain in his
wrists, right shoulder, and back where he had never had pain before. MLGW provided
him with a panel from which he chose Dr. Robert Riley Jones. '
Dr. Jones treated Mr. Dennis’s wrist and shoulder complaints with medication and
restricted duty. He also ordered MRIs, which revealed a possible right-wrist ligament
"Mr. Dennis chose Concentra from an initial panel but did not provide records from that treatment. He
also visited the emergency room on his own before treating with Dr. Jones.
tear, a ligament tear, subluxation, and incomplete fracture of the left wrist, and a partially
torn tendon, tendinosis, and multiple bursa loose bodies in the right shoulder.”
After reviewing the MRIs with a radiologist, Dr. Jones concluded the results “were
all chronic changes” that “take months to develop.” He noted that they “did not meet the
51% rule.”* Dr. Jones diagnosed right-shoulder contusions and bilateral wrist strains from
the accident and released him on October 12 with no permanent impairment, restrictions,
or anticipated treatment of his work injuries. He suggested that Mr. Dennis consult his
personal physician for further care.
Taking that advice, Mr. Dennis went to Dr. Norfleet Thompson, who reviewed the
diagnostic studies and noted “age indeterminate” abnormal findings in both wrists and
right shoulder. Dr. Thompson concluded, “[T]hese are likely underlying problems
aggravated by his car wreck.” He noted “underlying early arthritis and widening of the
scapholunate region” that “looks chronic.”
Mr. Dennis also pursued unauthorized treatment at Champion Orthopedic and
received diagnoses of ruptured right-wrist ligament, left-wrist fracture, and an
“unspecified” right-rotator cuff tear or rupture. The providers did not address causation
but noted degenerative findings.
Mr. Dennis disagreed with Dr. Jones’s conclusion that the torn ligaments and
fracture in his wrists were pre-existing, chronic changes unrelated to the accident. He
took three months of medical leave and saw other doctors, but he did not obtain medical
opinions primarily relating his ongoing pain to his work accident. He returned to MLGW,
where he continues to work without restrictions.
Findings of Fact and Conclusions of Law
Mr. Dennis must provide sufficient evidence from which the Court can determine
he is likely to prevail at a hearing on the merits. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Specifically, resolution of the issue turns on whether Mr. Dennis established the accident
caused or aggravated his degenerative condition and led to his current complaints.
To prevail, Mr. Dennis must prove that his condition “arose primarily out of and in
the course and scope of employment” or that he suffered an aggravation of a pre-existing
condition that “arose primarily out of and in the course and scope of employment.” Tenn.
* Mr. Dennis’ s low-back symptoms resolved, so Dr. Jones did not order a spine MRI.
* Dr. Jones misstates the correct legal standard. As explained in the next section, it must be shown to a
reasonable degree of medical certainty that the employment contributed “more than fifty percent” in
causing the need for medical treatment, considering all causes. (Emphasis added.)
Code Ann. § 50-6-102(14)(A) (2018). An 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 or
his need for medical treatment of the pre-existing condition, when considering all
causes.” Tenn. Code Ann. § 50-6-102(14)(B). Medical evidence is generally required to
establish a causal relationship, “[e]xcept in the most obvious, simple and routine cases.”
Berdnik v. Fairfield Glad Community Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at
*10-11 (May 18, 2017). The Court finds this is not an obvious, simple and routine case,
and medical evidence is required to establish a causal relationship.
The opinion of the authorized treating physician, selected by the employee from
the employer’s designated panel of physicians, is presumed correct as to causation, but
this presumption can be rebutted by a preponderance of the evidence. Tenn. Code Ann. §
50-6-102(14)(E).
In this case, MLGW does not dispute the accident but disputes whether Mr.
Dennis’s current need for treatment relates to the accident. MLGW relies on Dr. Jones’s
conclusions that Mr. Dennis’s need for treatment was primarily due to non-work related
degenerative conditions. As ATP, Dr. Jones’s opinion is presumed correct.
The Court found Mr. Dennis sincere in his testimony and does not disregard that
testimony. However, the Court cannot order medical benefits based on his testimony
alone, as the Court cannot make independent medical determinations without expert
medical proof. Thompson v. Comcast Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at
*31 (Jan. 30, 2018). Mr. Dennis cannot rely on his own interpretation of the medical
proof to successfully support his argument for treatment. Instead, he must present
sufficient medical evidence indicating he is likely to prevail at trial regarding causation.
Arciga v. AtWork Pers. Servs., 2016 TN Wrk. Comp. App. Bd. LEXIS 6, at *8-9 (Feb. 2,
2016).
The Court finds Mr. Dennis did not present sufficient medical proof that his need
for treatment is causally related to his work accident. Without this proof, the Court holds
he is unlikely to prevail at trial and denies his request for treatment at this time.
As for Mr. Dennis’s request for temporary disability benefits, he must prove (1)
disability from working as a result of a compensable injury; (2) a causal connection
between the injury and the inability to work; and (3) the duration of the period of
disability. Shepherd v. Haren Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS
15, at *13 (Mar. 30, 2016). Without sufficient medical proof, the Court holds Mr. Dennis
is also unlikely to prevail at trial on his claim for temporary disability benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Dennis’s requests for medical and temporary disability benefits are denied at
this time.
2. This case is set for a Scheduling Hearing on November 18, 2019, at 9:30 a.m.
Central. You must call 615-532-9550 or toll-free at 866-943-0014 to participate in
the Hearing. Failure to call might result in a determination of the issues without
your participation.
ENTERED October 8, 2019.
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Judge Deana C. Seymour
Court of Workers’ Compensation Claims
APPENDIX
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing along with Affidavit of Christopher Dennis
4. Medical Records Certification and Records submitted by Mr. Dennis
5. Employer’s Exhibit List
6. Employer’s Witness List
7. Employer’s Medical Records Designation
8. Pre-Compensation Hearing Statement
Exhibits:
1. First Report of Injury
2. Choice of Physicians Form — Concentra
3. Choice of Physicians Form — Dr. Jones
4, Medical records of Dr. Jones
5. Final Medical Report of Dr. Jones
6. Medical Records of Champion Orthopedics
7. Medical Records of Campbell Clinic
8. Imaging Records — MRI Reports
9. Desoto Imaging Specialists Records
10. Accident Photographs
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on October 8, 2019.
Name Certified | Via Via Service sent to:
Mail USPS | Email
Christopher Dennis, x x 1182 S. Willett Street
Self-Represented Memphis, TN 38106
Employee
Salwa Adnan Bahhur, xX Salwa @thehuntfirm.com
Employer’s Attorney
/) | /
S Gutta AM Mn
Peniy Shrajn, Court Clerk
Court of Workers’ Compensation Claims
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: “Expedited Hearing 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.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
L] Temporary disability benefits
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
Address:
Party’s Phone: Email:
Attorney's Name: BPR#:
Attorney’s Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I,
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of , 20
, certify that | have forwarded a true and exact copy of this
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam employed by:
My employer’s address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
ssl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ __ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082