                                                                                                               FILED
                                                                                                         September 9.,,201·6

                                                                                                          1NCOURTOF
                                                                                                      WORKERS' COMPENSATION
                                                                                                                 •CIL . ill.IS
                                                                                                                        .

                                                                                                               Time 7:12 i\!J


              TENNESSEE BUREAU OF WORKERS' COMPENSATION
             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT CHATTANOOGA

Richard Lee Wilson,                                            Docket No.: 2016-01-0032
            Employee,
v.                                                             State File No.: 80617-2015
Ryder Logistics,
            Employer,                                          Judge Audrey A. Headrick
And
Old Republic Insurance Company,
            Carrier.


                                  EXPEDITED HEARING ORDER
                                    (REVIEW OF THE FILE)


        This claim came before the Court upon a Request for Expedited Hearing filed by
the employee, Richard Lee Wilson, pursuant to Tennessee Code Annotated section 50-6-
239 (2015) for a determination of his entitlement to medical benefits and temporary
disability benefits regarding his right knee condition. Mr. Wilson requested that the
Court decide this matter upon a review of the file without an evidentiary hearing. Ryder
Logistics, the employer, did not object to a review-of-the-file determination. The Court
issued its docketing notice on July 19, 2016, and neither party responded. 1 The central
legal issue is whether the evidence is sufficient for the Court to determine that Mr.
Wilson sustained an injury or aggravation to his pre-existing right knee condition that
arose primarily out of and in the course and scope of his employment with Ryder.
Secondary issues include whether Mr. Wilson is entitled to reimbursement for medical
expenses and temporary disability benefits.




1
  However, since Ryder objected in its brief to the Request for Expedited Hearing based upon Mr. Wilson's failure
to file a supporting affidavit, the Court set a Show Cause Hearing. The Court granted a brief amount of time for Mr.
Wilson to re-file a Request for Expedited Hearing with a supporting affidavit, and Mr. Wilson timely complied with
the deadline set forth in the Court's order. The Court further permitted Ryder to file a supplemental response to the
new filing if it wished to do so.


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        This Court finds it needs no additional information to determine whether Mr.
Wilson is likely to prevail at a hearing on the merits of the claim. 2 Based upon the record
at this time, the Court finds the evidence submitted is sufficient to establish Mr. Wilson is
entitled to a panel of physicians from which he may choose an authorized physician for
evaluation, and if necessary, treatment of his alleged work-related right knee injury.
However, the record is insufficient at this time to establish he is likely to prevail at a
hearing on the merits on the issues of reimbursement for medical expenses and temporary
disability benefits. 3

                                          History of the Claim
       On September 5, 2015, Mr. Wilson, a forklift operator for Ryder, was restacking
pallets and experienced right-knee pain. (Ex. 1.) In a recorded statement, Mr. Wilson
stated his job duties included accurately transferring product; physically
loading/unloading trailers; and, moving the product throughout the facility. !d. On
September 5, 2015, Mr. Wilson bent down to grab a case, put it on the pallet, and
immediately started feeling sharp pain in his knee. !d. He reported his right-knee pain to
Andrew Hannah, his supervisor, who was restacking the pallets with him. !d. Later
during his shift, Mr. Wilson went to the Coordinator, Aaron Harrison, and told him his
knee was "messed up" and hurting. !d. Mr. Harrison told him to rest his knee over the
long weekend. !d.

        Mr. Wilson subsequently requested medical treatment, and Ryder authorized him
to see Dr. Brian B. Thompson at Blount Memorial Occupational Health. (Ex. 6.) The
record reflects that Ryder provided Mr. Wilson with a "Panel of Workers' Comp.
Medical Doctors" that is not on the required State form. (Ex. 3.) The "panel" contained
a listing of three clinics, which included Blount Memorial Occupational Health. !d.
There is no other identifying information or signatures contained on the panel. !d.

       Mr. Wilson first received medical treatment with Dr. Thompson, of Blount
Memorial Occupational Health, on September 16, 2015. (Ex. 6.) The office note states
Mr. Wilson gave a history of "picking up boxes [on September 5, 20 15] when his knee
started having sharp pain."4 !d. It also states he "was stationary when the pain started."
!d. Mr. Wilson gave a history of a past ACL repair to his right knee in 2003. !d. In his
recorded statement, Mr. Wilson stated he had no problems with his right knee following
his ACL repair until the September 5, 2015 incident. Dr. Thompson's differential
diagnoses were deep vein thrombosis (DVT) versus neuritis. !d. He ordered a right-leg

2
  Accordingly, pursuant to Tennessee Code Annotated section 50-6-239(d)(2) (2015), Tennessee Compilation Rules
and Regulations 0800-02-21-.14(l)(c) (2015), and Rule 7.02 of the Practices and Procedures of the Court of
Workers' Compensation Claims (2015), the Court decides this matter upon a review ofthe written materials.
3
  A complete listing of the technical record and exhibits is attached to this Order as an appendix.
4
  The Employer's First Report of Work Injury or Illness prepared by Ryder indicates that Mr. Wilson sustained a
"strain by lifting." (Ex. 2.)


                                                      2
venous Doppler to rule out a DVT, prescribed Gabapentin for possible neuritis, and
restricted Mr. Wilson to no weight-bearing of his right leg and walking only with
crutches. !d. On the Visit Summary for Employer form, Dr. Thompson checked "Unable
to Determine" whether Mr. Wilson's right-knee condition was work-related. !d.
       After the venous Doppler exam performed later that day was negative for a DVT,
Dr. Thompson placed a note in Mr. Wilson's file. !d. Dr. Thompson opined that he
thought Mr. Wilson's symptoms were "due to a neuritis but I cannot relate that to any on
the job injury." !d. He further opined Mr. Wilson "should seek care for this from his
personal physician." !d.

        Mr. Wilson's second and last visit with Dr. Thompson was on October 5, 2015.
!d. He told Dr. Thompson he "[w ]ent to Madisonville Primary Care to get FMLA papers
filled out" and "[w]as told he needed an MRI," so the "[a]djuster sent him back" to see
Dr. Thompson. !d. Under Current Work Status, Dr. Thompson's record noted Mr.
Wilson was not working. !d. Dr. Thompson again stated that Mr. Wilson's diagnosis
was not clear and further testing was necessary. !d. Although Dr. Thompson noted an
MRI of Mr. Wilson's right knee was necessary to determine the cause of Mr. Wilson's
symptoms, he stated he still could not "identify a mechanism of injury which would have
caused an internal derangement." Regarding medical causation, Dr. Thompson opined
that, "[f]urther testing is required before this can be determined with any certainty." Mr.
Wilson's work restrictions remained the same. Two days later, Mr. Wilson underwent a
right-knee MRI. (Ex. 8.) The MRI indicated no meniscal tears and no significant
internal derangement. !d.

        Mr. Wilson sought emergency treatment at Blount Memorial Hospital on October
11, 2015. (Ex. 5.) He complained of constant pain since hurting his knee at work a
month earlier, but the pain increased when bending over to pick something up. !d. The
physician's assistant diagnosed Mr. Wilson with right knee pain, indicated he could do
nothing further for him, and noted he was to "follow-up with his worker's compensation
facility" the next day. !d.

        Instead of returning to see Dr. Thompson, the record reflects that Mr. Wilson
subsequently obtained treatment on his own at Ortho Tennessee with Dr. Michael L.
Campbell. When Mr. Wilson saw Dr. Campbell on October 22, 2015, he reported, "that
Work Comp. has denied coverage for this." (Ex. 7.) He further informed Dr. Campbell
that the symptoms began after lifting at work when "he was getting up from a squatting
position [and] felt a pop and pain in his knee." !d. Mr. Wilson also disclosed his prior
right-knee ACL repair. !d. Dr. Campbell opined the recent MRI did not reveal any
"obvious acute abnormality" or any "evidence of a meniscal tear." !d. He diagnosed Mr.
Wilson with an internal derangement of his right knee and gave him an injection. !d.
       Dr. Campbell continued to treat Mr. Wilson conservatively. In addition to
prescribing Norco, Dr. Campbell also ordered physical therapy. !d. However, after Mr.
Wilson failed to respond to conservative treatment, Dr. Campbell recommended that Mr.
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Wilson undergo a diagnostic arthroscopy with possible partial meniscectomy and
chondroplasty. !d. The record is silent as to whether Mr. Wilson had the recommended
surgery. However, on December 18, 2015, Dr. Campbell responded affirmatively to
correspondence from Mr. Wilson's attorney asking whether "[t]he injury to Mr. Wilson
on 9/15/15 is work related."
      On January 14, 2016, Mr. Wilson filed a Petition for Benefit Determination
seeking medical benefits in relation to his right knee condition. On February 8, 2016, Dr.
Thompson checked "No" in response to Ryder asking if his "employment contribute[ d]
more than 50% in causing [Mr. Wilson's] injury or condition."
       The parties did not resolve the disputed issues through mediation, and the
mediator filed a Dispute Certification Notice on March 11, 2016. On the Dispute
Certification Notice, the Mediator listed temporary disability benefits as a disputed issue.
However, Ryder timely submitted a list of additional disputed issues including medical
benefits, compensability, and the average weekly wage. 5 In response to two Show Cause
Hearings, Mr. Wilson filed a Request for Expedited Hearing based upon a review of the
file.
       Mr. Wilson argued he sustained a compensable right knee injury on September 5,
2015. In support of his contention, Mr. Wilson argued that Dr. Campbell opined his knee
injury is work-related. Further, since Ryder did not provide him with a panel of
physicians, Mr. Wilson argued that Dr. Campbell's opinion is entitled to the greater
weight.
       Ryder argued the Court should deny Mr. Wilson's claim based upon the lack of
medical proof demonstrating he sustained a work-related right knee injury on September
5, 2015. In its amended response brief, Ryder acknowledged it did not provide Mr.
Wilson with a Form C-42 panel of physicians. It candidly admitted that it directed Mr.
Wilson to see Dr. Bryan Thompson at Blount Memorial Occupational Health. However,
Ryder argued that its failure to provide Mr. Wilson with a panel is not dispositive to the
issue before the Court.
       Despite the lack of a panel, Ryder contended the Court should not rely on Dr.
Campbell's opinion regarding causation because it fails to satisfy the statutory standard
required by Tennessee Code Annotated section 50-6-102(14)(B) (2015).                Ryder
contended the mechanism of injury is inconsistent in the records and is inconsistent with
Dr. Campbell's opinion that the injury is "work-related." Further, while pointing out that
Mr. Wilson had a pre-existing right knee condition, Ryder argued in its brief that his
symptoms "were idiopathic in nature and not associated with any risk or hazard of the
employment."
5
 The Court agrees with Ryder's assessment that the Mediator inadvertently transposed the average weekly wage and
weekly compensation rate on the DCN. The Wage Statement filed indicates the average weekly wage is $674.10,
which equates to a weekly compensation rate of$449.42. (Ex. 4.)


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                       Findings of Fact and Conclusions of Law

       Mr. Wilson has the burden of proof on all essential elements of a workers'
compensation claim. Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015).
He is not required to prove every element of his claim by a preponderance of the
evidence in order to obtain relief at an expedited hearing. 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). At an expedited hearing, Mr. Wilson
has the burden to come forward with sufficient evidence from which the trial court can
determine that he is likely to prevail at a hearing on the merits. !d. This lesser
evidentiary standard does not relieve Mr. Wilson of the burden of producing evidence of
an injury by accident that arose primarily out of and in the course and scope of
employment at an expedited hearing, "but allows some relief to be granted if that
evidence does not rise to the level of a 'preponderance of the evidence."' Buchanan v.
Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6
(Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).
       Ryder asserts Mr. Wilson failed to produce sufficient evidence to show he is likely
to prevail on the issue of causation regarding his alleged work-related, right knee injury.
In order to establish causation, Mr. Wilson 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." Tenn. Code Ann. §
50-6-102(14 )(C) (20 15). Likewise, an aggravation of a pre-existing condition is
compensable only if "it can be shown to a reasonable degree of medical certainty that the
aggravation arose primarily out of and in the course and scope of employment." Tenn.
Code Ann. § 50-6-102(14)(A) (2015). The phrase "reasonable degree of medical
certainty" means that, in the opinion of the 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).

       In this case, the Court finds Mr. Wilson failed to produce sufficient expert medical
evidence to establish compensability. Dr. Brian Thompson, who saw Mr. Wilson on two
occasions, did not provide a clear diagnosis of Mr. Wilson's right-knee condition. He
later opined that Mr. Wilson's condition did not primarily arise out of the course and
scope of his employment. However, since Dr. Thompson was not a panel physician, his
opinion regarding causation is not entitled to the rebuttable presumption of correctness
set forth in Tennessee Code Annotated section 50-6-102(13)(E) (2015). When Mr.
Wilson sought treatment on his own with Dr. Michael Campbell, an orthopedic surgeon,
Dr. Campbell ultimately diagnosed him with an internal derangement that he opined was
work-related and recommended surgery. (Ex. 7.) Although Dr. Campbell responded
affirmatively regarding causation, his opinion fails to establish that Mr. Wilson's right
knee injury arose primarily out of and in the course and scope of his employment with


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Ryder. Accordingly, the Court denies Mr. Wilson's request for reimbursement for
medical expenses and temporary disability benefits at this time.

       Nevertheless, Mr. Wilson is not required at this interlocutory stage to prove
compensability in order to establish that Ryder is obligated to provide him with a panel of
physicians from which he may choose an authorized physician. McCord, supra, at * 16-
*17. Tennessee Code Annotated section 50-6-204(a)(3)(D)(i) (2015) requires that an
"employer shall provide the applicable panel of physicians or chiropractors to the
employee in writing on a form prescribed by the bureau, and the employee shall select a
physician or chiropractor from the panel, sign and date the completed form, and return
the form to the employer." However, as acknowledged by Ryder, it did not offer Mr.
Wilson a panel of physicians upon receiving notice from him of his injury.

       Although the evidence is insufficient to establish the compensability of Mr.
Wilson's claim, the Court finds the evidence is sufficient to support an order compelling
Ryder to provide Mr. Wilson with a panel of physicians. Mr. Wilson immediately
complained of a work-related right knee injury, and the medical records support his
allegation that his right-knee pain began while he performed his job duties on September
15, 2015. Mr. Wilson's job duties as a forklift operator required him to stack pallets,
which included physically lifting and stacking cases onto pallets. He stated he had no
problems with his right knee following his ACL repair in 2003 until the incident on
September 5, 2015, and there is no proof establishing otherwise.

       The Court disagrees with Ryder's assertion that there are inconsistences in the
mechanism of injury described by Mr. Wilson. In his recorded statement, he said he was
restacking the pallets when he immediately started feeling sharp pain in his knee. Mr.
Wilson gave a history to Dr. Thompson of "picking up boxes [on September 5, 20 15]
when his knee started having sharp pain." (Ex. 6.) When he saw Dr. Campbell, he gave a
history of lifting at work when "he was getting up from a squatting position felt a pop and
pain in his knee." (Ex. 7.) When considering the medical records as a whole as well as
Mr. Wilson's recorded statement, the Court finds the histories given by Mr. Wilson are
consistent.

       The Court also respectfully disagrees with Ryder's assertion that Mr. Wilson's
right-knee symptoms "were idiopathic in nature and not associated with any risk or
hazard of the employment." "An idiopathic injury is one that has an unexplained origin
or cause, and generally does not arise out of the employment unless 'some condition of
the employment presents a peculiar or additional hazard."' Veler v. Wackenhut Servs.,
No. E2010-00965-WC-R3-WC, 2011 Tenn. LEXIS 78, at *9 (Tenn. Workers' Comp.
Panel Jan. 28, 2011) (quoting Shearon v. Seaman, 198 S.W.3d 209, 215 (Tenn. Ct. App.
2005)). Ryder focuses on the fact that its own physician, Dr. Thompson, did not identify
a cause tied to a hazard of Mr. Wilson's employment. "Cause" in the context of
idiopathic injuries means that the accident originated in the hazards to which the

                                            6
employee was exposed as a result of performing his job duties. Phillips v. A&H Constr.
Co., 134 S.W.3d 145, 150 (Tenn. 2004). Accordingly, since physically loading and
unloading product was part of Mr. Wilson's job duties, it is a hazard incident to his
employment with Ryder.

       For the foregoing reasons, the Court finds that Mr. Wilson provided sufficient
evidence of entitlement to a panel of physicians to satisfy his burden at this interlocutory
stage.

 IT IS, THEREFORE, ORDERED as follows:
   1. Ryder or its workers' compensation carrier shall provide Mr. Wilson with a panel
      of orthopedic physicians who specialize in knee injuries in compliance with
      Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) (2015) for evaluation,
      and if necessary, treatment of his alleged right-knee injury. Mr. Wilson or the
      providers shall furnish Ryder, or its carrier, bills for the charges incurred for
      compensable care, and Ryder or its carrier shall timely pay said charges.

   2. Mr. Wilson's request for reimbursement of medical benefits and temporary
      disability benefits is denied at this time.

   3. This matter is set for a Status Hearing on November 9, 2016, at 1:00 p.m., ET.


       ENTERED this the 9th day of September, 2016.




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Status Hearing:
      A Status Hearing has been set on November 9, 2016, at 1:00 p.m. Eastern Time,
with Judge Audrey A. Headrick, Court of Workers' Compensation Claims. You
must call 423-634-0164 or toll free at 855-383-0001 to participate in the Initial
Hearing.
       Please 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.


Right to AppeaJ:
       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

                                            8
   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
   any, with the Court Clerk within five business days of the 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.




                                         9
                                    APPENDIX

Exhibits:


        1.    Recorded Statement of Richard Lee Wilson
        2.    First Report of Work Injury
        3.    Panel of Physicians
        4.    Wage Statement
        5.    Medical records of Blount Memorial Hospital
        6.    Medical records of Dr. Bryan Thompson
        7.    Medical records ofDr. Michael Campbell
        8.    MRI performed at Provision Diagnostic Imaging on October 7, 2015
        9.    Causation Statement of Dr. Bryan Thompson dated February 8, 2016
        10.   Affidavit of Richard Lee Wilson



Technical record:

   1.  Petition for Benefit Determination
   2.  Brief Supporting Petition for Benefit Determination
   3.  Dispute Certification Notice
   4.  Show Cause Order
   5.  Order on Show Cause Hearing
   6.  Request for Expedited Hearing
   7.  Employer's Filing ofEvidence & Table of Contents
   8.  Employer's Response Brief to Employee's Expedited Request for Benefits
   9.  Employer's Amended Response Brief to Employee's Expedited Request for
       Benefits
   10. Docketing Notice for Review of the File Determination
   11. Order Denying Request for Expedited Hearing (Review of the File)
   12. Affidavit of Richard Wilson
   13. Order on Show Cause Hearing
   14. Request for Expedited Hearing




                                         10
                                 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 9th day of
 September, 2016.
Name                 Certified   First Class   Via    Fax      Via Email   Email Address
                     Mail        Mail          Fax    Number

Philip R. Strang,                                                 X        philipstrang0525 @gmail.com
Attorney
Stephen B. Morton,                                                X        stephen.morton@mgclaw.com
Attorney




                                                     P nny Sh
                                                     Court of orkers' Compensation Claims
                                                     WC.CourtClerk@tn.gov




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