                                                                                                  FILED
                                                                                               Aug 03, 2020
                                                                                               03:33 PM(CT)
                                                                                            TENNESSEE COURT OF
                                                                                           WORKERS' COMPENSATION
                                                                                                  CLAIMS




             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
            IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                             AT MEMPHIS

    GWENDOLYN JUMPER,                                 )   Docket No. 2017-08-1353
                 Employee,                            )
    v.                                                )
    ROSSVILLE CONV FDS MAN FF                         )   State File No. 94430-2017
    0378, d/b/a/ KELLOGG COMPANY                      )
                 Employer,                            )
    and                                               )
    OLD REPUBLIC INS. CO.,                            )   Judge Amber E. Luttrell
                 Carrier.                             )


                            COMPENSATION HEARING ORDER


       Ms. Jumper alleged a gradual injury to her back and requested medical benefits as
well as temporary and permanent disability benefits. Kellogg Company denied
compensability of her claim based on causation and lack of notice. The Court held a
Compensation Hearing to determine whether Ms. Jumper established a compensable back
injury by a preponderance of the evidence. For the reasons below, the Court holds she did
not and denies her claim.
                                    History of Claim

        Ms. Jumper has worked for Kellogg for thirty-years. Over the years, she performed
jobs requiring bending, lifting, and twisting. In November 2016, she reported to Kenneth
Gardner, a supervisor, that “work is killing my back.”1 She testified she had no specific
injury, but rather a gradual increased pain in her back. Mr. Gardner sent her to the company
nurse, who instructed her to write a statement about the problems she was experiencing.
Ms. Jumper drafted a statement on November 17, 2016, which read:

        From 2003 to 2014 I have work[ed] on numbers of jobs here at the Rossville
1
 Ms. Jumper filed two Petitions for Benefit Determination, both stamped filed on April 27, 2018 and
assigned the same docket number and state file number. In one Petition, Ms. Jumper listed the date of injury
as December 6, 2016 (Ex. 7), and the second Petition lists the date of injury as December 16, 2016 (Ex. 6).
Ms. Jumper argued at trial that neither date is correct as she is claiming a gradually occurring injury.
                                                     1
        plant. I work[ed] in Battermix which requires a lot of lifting. I have work[ed]
        in the wheel room on Mod5, which I done a lot of lifting and dumping bits.
        Working as a stacker requires some lifting and dumping waffles. I work[ed]
        in the packaging area, which require a lot of lifting of the carton onto the
        machine.

       Kellogg provided Ms. Jumper a panel of physicians, from which she selected Dr.
Stephen Waggoner, an orthopedic spine surgeon. Dr. Waggoner testified Ms. Jumper
reported low back pain, provided a history of trouble with her back “on and off” since a
2003 work injury, and worsened back pain after a lifting injury at Kellogg in 2014. He
diagnosed chronic low back pain and underlying lumbar spondylosis or degenerative
changes. He found no evidence of radiculopathy and believed her pain was “probably
related to the mild degenerative changes in her lumbar spine.” He stated she could return
to work without restriction. Regarding causation, Dr. Waggoner explained Ms. Jumper did
not give him a history of suffering a recent injury or series of incidents at work, so he
concluded, “[W]ithout a definite history of a recent injury . . . I did not feel that it was a
work-related injury.”

       Ms. Jumper did not complain of a work injury to Dr. Jay Saenz either, whom she
saw after Dr. Waggoner. Ms. Jumper first saw Dr. Saenz for her back in February 2015.
His records indicated he began treating her for pain she stated began on February 22,
201[4], when she was getting out of bed.2 He treated Ms. Jumper conservatively over the
years for a diagnosis of lumbar strain vs. facet arthritis/syndrome, and his records did not
mention her work other than to note that she requested he limit her work to forty hours per
week. In a physical therapy record from Dr. Saenz’s office, Ms. Jumper indicated her injury
occurred “years ago” and had worsened over the years. After Dr. Saenz diagnosed lumbar
radiculopathy, Ms. Jumper underwent an MRI, and the record noted the history she gave
was of “lower back pain radiating to the right leg since 2014.” At a follow up visit, Dr.
Saenz reviewed the MRI and noted it revealed a disc extrusion at L4-5, among other
findings.

       Ms. Jumper then requested a referral from her family physician to Dr. Glenn Crosby.
She saw Dr. Crosby and reported pain across her back and down her left leg aggravated by
bending and lifting and relieved somewhat by lying flat on her back. She did not tell him
that she believed her condition may be work related. Dr. Crosby diagnosed lumbar
radiculopathy in the left leg. He noted the L4 disc rupture on MRI, performed surgery, and
released Ms. Jumper at maximum medical improvement in November 2017.

      As to causation, Dr. Crosby acknowledged that he relied on a letter from Ms.
Jumper’s counsel in which he was asked to assume that she “works in a factory which

2
  Dr. Saenz’s February 20, 2015 record incorrectly stated her pain began February 22, 2015; however, he corrected
the date to 2014, at Ms. Jumper’s request, in an addendum dated March 23, 2017.

                                                       2
requires her to bend, squat, stoop, push, and pull on a repetitive basis each workday” and
that she experienced “no off-work trauma.” Assuming those facts, Dr. Crosby stated Ms.
Jumper’s repetitive work activities caused the disc rupture at L4 for which he performed
surgery. In terms of a percentage, he wrote, “[I]n my opinion to a reasonable degree of
medical certainty, Ms. Jumper’s work activities . . . are 75% to 80% of the cause of her
lumbar surgery at L4.”

       On cross-examination, Dr. Crosby testified he did not attribute Ms. Jumper’s back
condition to “any particular incident” during his treatment of her and she reported she had
the symptoms for “some time.” He stated he first considered causation for Ms. Jumper’s
condition when he received the letter from her counsel, and he stated his opinion was based
on that letter. Dr. Crosby had not reviewed Ms. Jumper’s records except for the report of
an independent medical evaluation performed by Dr. Apurva Dalal, at Ms. Jumper’s
attorney’s request. He was not aware Ms. Jumper had any prior back injuries and stated if
she did, it could affect his opinion. Further, he did not consider all causes for her back
condition. The attorneys showed Dr. Crosby one of Dr. Saenz’s records; however, again,
relying on the work activities described by Ms. Jumper’s counsel, he did not change his
causation opinion.

       Dr. Dalal, who performed Ms. Jumper’s independent medical evaluation, agreed
with Dr. Crosby’s causation opinion based on the facts presented in her counsel’s letter. In
evaluating Ms. Jumper, he diagnosed “status post work-related injury to the lower spine
requiring surgery now with continue radiculopathy.” On cross-examination, Dr. Dalal
acknowledged Ms. Jumper did not inform him of her prior back injuries or longstanding
back pain.

        At the hearing, Ms. Jumper testified regarding her previous back injuries. She stated
she underwent conservative treatment for her 2003 injury, was released, and returned to
work. She injured her back again in 2014 when she helped a coworker lift a heavy barrel.
She stated she reported that injury, but Kellogg did not do anything and she “learned to
live with the pain.” Ms. Jumper stated that when she reported her complaints in November
2016, her pain had increased. On cross-examination, Ms. Jumper testified she could not
recall any specific incident and described no series of incidents that caused her back pain
to worsen. Ms. Jumper continues to work at Kellogg. She works as a supervisor lead, which
is easier on her back.3

                           Findings of Fact and Conclusions of Law

3
  Kellogg’s Human Resources Manager Tasha Corbin also testified at the hearing regarding two First
Reports of Injury Kellogg filed concerning Ms. Jumper. Kellogg filed a First Report noting Ms. Jumper
reported a July 6, 2016 injury stating, “I think maybe I re-injured my back in 2014 and I have been dealing
with it and can’t handle it anymore. I think I hurt my lower back when I was helping James Green dump a
barrel of waffles that was ¾ full.” The second First Report lists a December 16, 2016 date of injury that
Ms. Jumper’s counsel asserted was incorrect since she alleged a gradual injury.
                                                    3
       At a Compensation Hearing, Ms. Jumper must establish by a preponderance of the
evidence that she is entitled to the requested benefits. Willis v. All Staff, 2015 TN Wrk.
Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-
239(c)(6) (2019).

        The threshold issue is whether Ms. Jumper established an injury as defined in the
Workers’ Compensation Law. Tennessee Code Annotated section 50-6-102(14)(A)
provides that an injury is “accidental” only if the injury is caused by a “specific incident or
set of incidents arising primarily out of and in the course and scope of employment, and is
identifiable by time and place of occurrence.” Because Ms. Jumper alleged a gradually
occurring injury and not one specific incident, she must prove her injury was caused by a
specific set of incidents, identifiable by time and place of occurrence. The Court finds she
did not meet her burden.

        The Appeals Board considered an employee’s gradually occurring injury claim and
whether he satisfied the statutory definition of “injury” by demonstrating his condition was
caused by a specific set of incidents in Smiley v. Four Seasons Coach Leasing, Inc., 2016
TN Wrk Comp. App. Bd. LEXIS 28 (July 15, 2016). In Smiley, the employee alleged he
was injured while operating a touring coach during a nineteen-day concert tour. While
driving the coach, the employee experienced pain and symptoms in his shoulder, left hip,
and low back, which he specifically attributed to a defective and/or poorly maintained seat
and rough road conditions. Id. at *1. The Appeals Board affirmed the trial court’s holding
that the employee proved a specific set of incidents caused his injury. In doing so, the Board
wrote, “Claimant described specific symptoms that developed and increased in intensity
over an identifiable period of time while operating the coach. Moreover, he offered detailed
testimony concerning a specific portion of the journey . . . that resulted in an acute
worsening of his symptoms.” Id. at *22.

       In contrast to Smiley, here, Ms. Jumper pointed to no specific set of incidents at work
over an identifiable period of time leading up to her report in November 2016. Instead, her
direct testimony was generally that “over the years” at Kellogg, she performed jobs
requiring bending, lifting, or twisting. She did not testify to her job title or duties in 2016.
She stated that in 2016, there was no specific event; she just experienced increased back
pain. After reporting her pain to Mr. Gardner, Ms. Jumper prepared a written statement,
which did not reference any specific job duties or activities that caused her increased back
pain. Instead, she referenced jobs she performed between 2003, when she first injured her
back, and 2014, when she injured her back at Kellogg again.

       Moreover, Ms. Jumper never reported any specific set of incidents at work in 2016
to any treating physicians. She only referenced work when she related her complaints to
her 2003 and/or 2014 injuries.

       When Ms. Jumper saw Dr. Waggoner, her panel physician, she did not provide any

                                               4
specific set of incidents that caused her pain. Instead, she gave him a history of back pain
dating back to her 2003 work accident. She also told him she injured her back at work in
2014, which led to her treatment with Dr. Saenz in 2015.

       According to Dr. Saenz’s records, Ms. Jumper never associated her back complaints
to any specific set of incidents at work. Rather, he noted she said her pain increased after
getting out of bed. She told her physical therapist in Dr. Saenz’s office that her injury was
“years ago” and described symptoms ever since her work injury in 2003. In addition, Dr.
Saenz ordered an MRI and the report indicated Ms. Jumper stated her back and leg
complaints dated back to 2014.

        As for Dr. Crosby, while Ms. Jumper told him her back pain was aggravated by
lifting and bending, he testified she never associated her back pain with any “particular
incident.” Instead, she told him it had been going on for “some time.” He stated he treated
her for the same condition as Dr. Saenz. In fact, Dr. Crosby stated he never considered
causation until Ms. Jumper’s attorney sent him a letter asking him to assume certain facts
regarding Ms. Jumper’s work.

        Had Ms. Jumper established an injury, the Court further finds she did not establish
medical causation by a preponderance of the evidence. 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, considering all causes.” Tenn. Code Ann. § 50-6-102(13)(B).

       The Court considered the medical testimony of Drs. Waggoner, Crosby, and Dalal.
Dr. Waggoner testified her back condition was not related to her work based on the lack of
a specific history of an injury. As the panel physician, his opinion is afforded a rebuttable
statutory presumption of correctness under Tennessee Code Annotated section 50-6-
102(14)(E) (2019).

        Dr. Crosby causally related Ms. Jumper’s back injury to her work based on her
counsel’s hypothetical that she “works in a factory which requires her to bend, squat, stoop,
push, and pull on a repetitive basis each work day” and had no “off-work trauma.”
However, the Court finds Dr. Crosby’s causation opinion problematic since he stated he
did not consider all causes in forming his opinion, and he based his opinion on hypothetical
facts that were unsupported by Ms. Jumper’s testimony at trial.

       As discussed above, Ms. Jumper gave no history of any specific work activities that
led to her pain she reported in 2016. Thus, there was simply no testimony that she was
squatting, stooping, pushing, or pulling on a repetitive basis each day. In Bearden v.
Memphis Dinettes, Inc., 690 S.W.2d 862, 868 (Tenn. 1984), the Supreme Court held that
hypothetical questions seeking expert opinion evidence “are improper and of no value
when they assume facts not supported by the evidence.” Because the letter soliciting Dr.

                                             5
Crosby’s opinion contained foundational statements of fact that were unsupported by the
evidence, the Court affords his causation opinion little weight. Likewise, the Court affords
Dr. Dalal’s causation opinion little weight for the same reason. Consequently, the Court
holds Ms. Jumper did not overcome the presumption of correctness afforded Dr.
Waggoner’s opinion. 4 5

    IT IS, THEREFORE, ORDERED as follows:

    1. Ms. Jumper’s claim for workers’ compensation benefits is denied.

    2. Absent an appeal of this order, it shall become final thirty days after issuance.

        ENTERED August 3, 2020.

                                                 _________________________________________
                                                 JUDGE AMBER E. LUTTRELL
                                                 Court of Workers’ Compensation Claims

                                               Appendix
Technical Record:

    1. Petition for Benefit Determination listing 12-16-2016 date of injury
    2. Dispute Certification Notice
    3. Scheduling Order
    4. Joint Motion to Continue Mediation
    5. Order on Joint Motion to Continue Mediation
    6. Joint Motion to Continue Compensation Hearing
    7. Order on Joint Motion to Continue Compensation Hearing
    8. Post-Discovery Dispute Certification Notice
    9. Joint Motion to Continue Compensation Hearing
    10. Order Granting Joint Motion to Continue
    11. Joint Motion to Continue Compensation Hearing
    12. Order Granting Joint Motion to Continue
    13. Order Resetting Compensation Hearing
    14. Order Resetting Compensation Hearing
    15. Employer’s Motion for Summary Judgment

4
  Ms. Jumper argued in closing that the Court should strike down as invalid the statutory presumption
afforded panel physicians under Tennessee Code Annotated section 50-6-102(e) contending it violates
Tennessee Code Annotated section 50-6-116, which provides that the Workers’ Compensation Act shall
not be remedially or liberally construed but shall be construed fairly, impartially, and in accordance with
basic principles of statutory construction and . . .shall not be construed in a manner favoring either the
employee or the employer. The Court finds no merit in Ms. Jumper’s argument.
5
  Based on the Court’s holding, it need not address Kellogg’s notice argument.
                                                    6
   16. Order Denying Summary Judgment
   17. Plaintiff’s Pre-trial Statement
   18. Employer’s Pre-trial Statement
   19. Joint Pre-Compensation Hearing Statement

Exhibits:
   1. First Report of Injury- 12-16-2016 date of injury
   2. Ms. Jumper’s written statement
   3. Panel of Physicians
   4. Notice of Denial of Claim
   5. First Report of Injury- 7-6-2016 date of injury
   6. Petition for Benefit Determination listing 12-16-2016 date of injury
   7. Petition for Benefit Determination listing 12-6-2016 date of injury
   8. Dr. Crosby’s deposition
   9. Dr. Dalal’s deposition
   10. Dr. Waggoner’s deposition
   11. Employer’s Amended Medical Records Index

                             CERTIFICATE OF SERVICE

      I certify that a copy of this Order was sent as indicated on August 3, 2020.

  Name                                    Via Email       Service Sent to:
  Steve Taylor, Employee’s                    X           staylor@tcmfirm.com
  Attorney
  Tom Smith, Employer Attorney                  X         tsmith@spicerfirm.com

                                         _____________________________________
                                         Penny Shrum, Clerk
                                         WC.CourtClerk@tn.gov




                                            7
                         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
