Walton, Lee A. Sr. V. Averitt Express

IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
LEE A. WALTON, SR., ) Docket No.: 2015-08-0306
Employee, )
v. ) State File Number: 60505-2015
AVERITT EXPRESS, )
Employer. ) Judge Allen Phillips
)
EXPEDITED HEARING ORDER DENYING MEDICAL AND TEMPORARY
BENEFITS
This matter came before the undersigned Workers' Compensation Judge on
February 11, 20 16, upon the Request for Expedited Hearing filed by the employee, Lee
Walton, pursuant to Tennessee Code Annotated section 50-6-239 (2015). Mr. Walton
seeks medical and temporary disability benefits for an alleged back and neck injury.
Averitt Express contends he has failed to establish a causal connection between his injury
and his employment. Accordingly, the central legal issue is whether Mr. Walton's injury
is causally related to his employment at Averitt. For the reasons set forth below, the
Court finds Mr. Walton has not come forward with sufficient evidence at this time to
show his injury arose primarily out of his employment and he is not entitled to the
requested benefits. 1
History of Claim
Mr. Walton is a fifty-one-year-old resident of Shelby County, Tennessee who
worked for Averitt as a truck driver. He alleges an injury to his back and neck on January
15, 2015, when unloading a trailer in Louisiana. Mr. Walton was moving what he
described as an 800-pound "rolltainer."2 When the "brakes" on the trailer lift gate failed,
Mr. Walton was "pulled" by the rolltainer towards the rear of the trailer. When he jumped
out of the way, Mr. Walton claims to have injured his back and neck. He described these
injuries as causing "more severe pain" than he had experienced from a prior injury at
1
A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
2
A rolltainer, by Mr. Walton's description, is a rolling pallet of dry goods.
1
Averitt in September 2014.
When he finished unloading the trailer, Mr. Walton began his return trip to
Averitt's terminal in Greenville, Mississippi. En route, he reported the injury to his
dispatcher and advised he was unable to continue. Mr. Walton claims the dispatcher
refused to send any transportation for Mr. Walton back to Memphis but advised he would
send a relief driver for the truck. The dispatcher advised Mr. Walton to stay with the
vehicle until relieved.
Mr. Walton then spoke with an insurance adjuster for Averitt who, according to
Mr. Walton, took the position that his '"injury" was a continuation of symptoms related to
the prior injury of September 2014. Because Dr. Stephen Waggoner, an orthopedic
surgeon, was the approved physician for that claim, the adjuster advised she would
schedule an appointment with him. The adjuster advised the appointment was for
evaluation of his back even though Mr. Walton advised her that his neck was now the
primary problem.
On the evening of January 15, 2015, Mr. Walton sought care on his own at Delta
Regional Medic~l Center in Greenville. There, he reported back and neck pain '"radiating
to both arms." (Ex. 2 at 17.) The provider noted a '"chronic" onset and the '"type" of
injury as '"lifting ... at work." !d. ACT scan of the neck revealed "no significant acute
abnormality" and a CT of the lumbar spine revealed a '"small" disc herniation and mild
stenosis. !d. at 19 and 20. The discharge diagnosis was neck and back pain. !d. at 21.
Though the records do not reflect it, Mr. Walton testified the provider excused him from
work for five days.
Upon his return to Memphis, Mr. Walton sought care on his own at Baptist
Hospital on January 31, 2015. He complained of '"left neck pain onset Sept 2014."
Specifically, he was '"reversing his truck and had an accident" where he '"jerked" his
neck. (Ex. 3 at 23.) He claimed to have '"returned to work 9 days ago and the pain has
worsened." !d. His neck pain radiated to the left arm. He also complained of low back
pain. !d. The provider, Dr. Christopher Adelman, recommended MRls of the cervical and
lumbar spine. These showed '"mild" abnormalities. The provider released Mr. Walton
with diagnoses of a bulging lumbar disc and cervical stenosis. He advised Mr. Walton to
follow with the '"Workmans [sic] Comp" physician he was seeing. (Ex. 3 at 25.)
Mr. Walton saw Dr. Waggoner on February 4, 2015. Dr. Waggoner noted Mr.
Walton was there, '"for evaluation of his lower back." He recorded a detailed history that
Mr. Walton injured his back on '"8/22/2014" when he '"backed his truck up and ran into a
dock." The impact '"jarred his neck and back." Dr. Waggoner noted that he, "was treating
him for his neck and released him from his neck standpoint on 12/22/2014." After
returning to work in January 2015, Mr. Walton stated the '"pain got worse" and he had to
go to the emergency room in Greenville, Mississippi where CT scans of the neck and
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back were "within normal limits." (Ex. 4 at 1.)
Dr. Waggoner's examination was limited to the lumbar spine. He recorded no
positive findings. He interpreted the lumbar MRI from Baptist on January 31, 2015, as
showing no disc herniations and the cervical MRI as showing multilevel degenerative
disc disease with no cord impingement or nerve root compression. (Ex. 4 at 2.) The
diagnosis was "chronic low back pain." Id. Dr. Waggoner found no indication for
surgical intervention and released Mr. Walton to regular duty. ld. at 3. Dr. Waggoner
mentioned Mr. Walton desired a second opinion; Mr. Walton testified Averitt denied his
request. Mr. Walton testified Dr. Waggoner only '"looked at my back and not my neck,"
despite his complaints of neck pain.
Mr. Walton then sought care on his own from Dr. Madiha Mar at Baptist Primary
Care. On February 11, 2015, he complained of lower back pain for '"5 months." He stated
the injury "happen [sic] at work" and there was "no fall." (Ex. 3 at 8.) A health
questionnaire completed by Mr. Walton indicated he was there for "neck and back
pains." ld. at 13. Dr. Mar diagnosed lumbago and took him off work for two weeks.Jd. at
10. The next note from Dr. Mar is dated March 4, 2015, where Dr. Mar stated Mr.
Walton was "unable to see the neurosurgeon this week" and that he will be calling to
reschedule. He was to remain off work. ld. at 21.
Mr. Walton testified he waited for an appointment at "Campbell Clinic" but
ultimately learned his insurance did not cover that provider. He then came under the care
of Dr. Laverne Lovell, a neurosurgeon at Semmes-Murphey Clinic who performed a
three-level cervical fusion. No records of Dr. Lovell were placed in evidence apart from
off-work slips of April 21, 2015, and August 12, 2015. (Ex. 5 at 29 and 43.) At the time
of the hearing, Mr. Walton remained off work per Dr. Lovell. However, since Averitt
terminated him in September 2015, he no longer had insurance coverage and could not
seek further treatment. He testified that he and Dr. Lovell had discussed the possibility of
further surgery. At the hearing, he was wearing a "hard" cervical collar and what he
described as a "bone growth stimulator."
Averitt terminated Mr. Walton on September 16, 2015, because, '"my time had run
out," apparently referring to a "leave of absence." He has not worked since January 15,
2015, and requests his "lost wages" from that time forward. He additionally requests
reimbursement of certain medical bills for charges not covered under his Averitt group
insurance. Mr. Walton expressed a desire to recover from his injuries and return to work.
He expressed trepidation over his inability to support himself and his family.
For its part, Averitt argued that Mr. Walton failed to establish a compensable
injury occurring on January 15, 2015. Specifically, it points to the records of Drs.
Adelman and Waggoner. Both physicians attribute Mr. Walton's "back pain ... to his
previous injury" in September 2014. Because his back condition pre-existed January 15,
3
2015, the event of that date was a non-compensable aggravation of pain alone. Averitt
elicited testimony from Mr. Walton on cross-examination to the effect that he had
"experienced" back pain between September 20 14 and January 15, 20 15.
Averitt also argued that Mr. Walton had requested only benefits for a back injury.
Mr. Walton disagreed that the request for benefits in this case was only for his back;
instead, he claimed both his back and neck were injured. Regarding his neck, he admits
Dr. Waggoner had released him regarding the September 2014 neck injury before the
January 15, 2015 event. However, he contends the January event caused his need for
medical treatment.
Findings of Fact and Conclusions of Law
Because this case is in a posture of an Expedited Hearing, Mr. Walton need not
prove every element of his claim by a preponderance of the evidence in order to obtain
relief. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
Instead, he must come forward with sufficient evidence from which this court might
determine he is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. § 50-6-
239(d)(1)(2015). In analyzing whether he has met his burden, the Court will not
remedially or liberally construe the law in his favor, but instead shall construe the law
fairly, impartially, and in accordance with basic principles of statutory construction
favoring neither Mr. Walton nor Averitt. See Tenn. Code Ann. § 50-6-116 (2015).
Though Mr. Walton has elected to represent himself, as is his right, he still "must comply
with the same standards to which parties with legal counsel must adhere." Thurmond v.
Yates Services, No. 2015-06-0240, 2015 TN Wrk. Comp. App. Bd. LEXIS 34, at *6
(Tenn. Workers' Comp. App. Bd. Sept. 8, 2015).
To be compensable, Mr. Walton must show that his alleged injury arose primarily
out of and in the course and scope of his employment. Tenn. Code Ann. § 50-6-102(14)
(2015). He must also show his injury was caused by an incident, or specific set of
incidents, identifiable by time and place of occurrence Tenn. Code Ann. § 50-6-
102(14)(A) (2015). Further, he must show, "to a reasonable degree of medical certainty
that [his alleged work injury] contributed more than fifty percent (50%) in causing the ..
. disablement or need for medical treatment, considering all causes." Tenn. Code Ann. §
50-6-102(14)(C) (2015). "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)(D) (2015).
Weighed against these requirements, the Court will first address the lay proof that
consisted solely of Mr. Walton's testimony. When doing so, the Court finds Mr. Walton
credible. He testified concisely and without hesitation regarding the events of January 15,
2015. Based upon Mr. Walton's uncontroverted testimony, the Court finds he did prove
4
by a preponderance of the evidence a specific event identifiable by time and place of
occurrence. Specifically, while unloading a truck in the course and scope of his
employment with Averitt, he suffered pain in his neck and back when he jumped from a
trailer.
However, upon careful review of the medical records, the Court finds no expert
opinion that Mr. Walton's alleged neck injury is more likely than not related to the event
of January 15, 2015. 3 The absence of an expert medical opinion that the specific incident
contributed more than fifty percent in causing his neck injury is fatal to his claim at this
Expedited Hearing. In so finding, the Court notes the records of Delta Regional record a
"chronic" history of neck and back pain and reference a "lifting" event. There is no
mention of the immediate event and no causation opinion. Dr. Dar records a history of
only low back pain. Dr. Adelman notes complaints of neck pain but provides no
causation opinion. Finally, Dr. Waggoner attributes no causation to the January 15, 2015
event and reiterates that he had released Mr. Walton from treatment for the neck. There
are no medical records in evidence from Dr. Lovell, the operating surgeon.
The Court has considered Mr. Walton's position that Dr. Waggoner only
examined his back despite his neck complaints both to the doctor and to the adjuster.
However, Dr. Waggoner did specifically state in his note of February 4, 2015, that he
reviewed the cervical MRI and it showed no cord impingement or nerve root
compression. Thus, the evidence establishes Dr. Waggoner did consider objective testing
of the neck, and nothing in that testing changed his opinion regarding his release of Mr.
Walton in December 2014 for the earlier neck injury of September 2014.
Our Appeals Board recently stated, "[w]ith respect to the element of medical
causation, it was traditionally the employee's burden to offer expert medical proof of
causation ' [e]xcept in the most obvious, simple and routine cases."' Scott v. Integrity
Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015) citing Cloyd v. Hartco Flooring Co., 274
S.W.3d 638, 643 (Tenn. 2008). Mr. Walton's injury is not so obvious as to remove the
need for expert proof of causation. Further, in Scott, our Appeals Board noted that:
[F]or injuries before July 1, 2014, an injured employee could satisfy her
burden of proof of medical causation by offering expert medical testimony
that a work accident 'could be' the cause of the employee's medical
condition, when there was corroborating lay testimony from which it could
reasonably be inferred that the incident was in fact the cause of the injury.
See, e.g., Hill v. Eagle Bend Mfg., 942 S.W.2d 483 (Tenn. 1997). The
analysis in such cases was predicated on expert medical testimony
3
The Court notes Mr. Walton somewhat meticulously arranged various stacks of documents on the counsel table for
presentation. He obviously spent considerable time in preparing his case. He submitted medical records from all his
providers with the exception of Dr. Lovell, his treating surgeon.
5
combined with corroborative lay testimony. Thus, even under pre-reform
law, lay testimony alone was insufficient in most cases to establish
adequate evidence of medical causation.
Scott, at * 11 (emphasis added).
Accordingly, Mr. Walton cannot rely solely upon his own testimony because it is
he who must establish causation and his "lay testimony ... without corroborative expert
testimony, [does] not constitute adequate evidence of medical causation." Scott, at * 12.
He must "secure expert opinions or other evidence necessary to address any applicable
burden of proof." Pool v. Jarmon D&Q Transport, No. 2015-06-0510, 2016 TN Wrk.
Comp. App. Bd. LEXIS 1 at* 10 (Tenn. Workers' Comp. App. Bd. Jan. 4, 2016).
Based upon the evidence, the Court finds Mr. Walton has not come forward at this
time with sufficient evidence to show he would likely prevail at a hearing on the merits
and denies his request for benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Walton's claim against Averitt for the requested medical benefits is denied at
this time.
2. This matter is set for an Initial (Status) Hearing on April 27, 2016, at 9:00 a.m.
Central time.
'
ENTERED this the 7th day of March, 2016
Judge Allen Phillips
Court of Workers' Compe
Initial (Status) Hearing:
An Initial (Status) Hearing has been set with Judge Allen Phillips, Court of
Workers' Compensation Claims. You must call 731-422-5263 or toll-free at 855-543-
5038 to participate in the Initial Hearing.
Ple~se Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.
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Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal,
may request, from the Court Clerk, the audio recording of the hearing for the
purpose of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
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any, with the Court Clerk within five business days ofthe filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order 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.
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APPENDIX
Exhibits:
1. Affidavit of Lee A. Walton, Sr.;
2. Medical Records of Delta Regional Medical Center;
3. Medical Records of Baptist One Care and Baptist Hospital;
4. Medical Records of Dr. Stephen Waggoner;
5. Medical Records of Semmes-Murphey Clinic;
6. Medical Records ofMethodist-LeBonheur Healthcare;
7. Off-work slip from Delta Regional Medical Center;
8. Proof of Delivery form from Dollar General Store of January 15, 2015;
9. Averitt Request for Leave of Absence Form completed by Mr. Walton;
10. First Report of Work Injury;
11. Mileage Reimbursement Request completed by Mr. Walton;
4
12. Medical bills from various providers introduced by Mr. Walton .
Technical record:
1. Petition for Benefit Determination, filed on August 5, 20 15;
2. Dispute Certification Notice, filed on August 27, 2015;
3. Request for Expedited Hearing, filed on'November 12, 2015; and
4. Averitt's Response to Expedited Hearing. 5
4
Given the findings herein, the Court need not itemize the providers from whom there are outstand ing bills.
5
The Court did not consider attachments to Technical Record fi lings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 7th day of
March, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Lee A. Walton, X leewltn@mnail.com
Self-represented X
Gregory C. Morton, X greg@s12arkman-zummach.com
Employer's Counsel
Penny Shrum, Clerk of Court
Court of Workers' Compensation Claims
WC.CourtCierk@tn.gov
10