                                                                                             FILED
                                                                                          Dec 12, 2019
                                                                                          10:19 AM(CT)
                                                                                       TENNESSEE COURT OF
                                                                                      WORKERS' COMPENSATION
                                                                                             CLAIMS




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

DALE HUNTER,                                   )
        Employee,                              )       Docket No. 2017-08-1268
                                               )
v.                                             )
                                               )       State File No. 88488-2017
DOUG’S AUTOMOTIVE,                             )
         Employer.                             )
                                               )       Judge Dale Tipps
                                               )



                              EXPEDITED HEARING ORDER
                                  GRANTING BENEFITS
                               (DECISION ON THE RECORD)


        This case came before the Court on December 6, 2019, for an Expedited Hearing
on the record without an in-person hearing. The central legal issue is whether Mr. Hunter
is likely to establish at a hearing on the merits that his need for the requested epidural
steroid injections arose primarily out of and in the course and scope of his employment.
For the reasons below, the Court holds Mr. Hunter is entitled to the requested benefits.

                                        History of Claim

       This is Mr. Hunter’s third Expedited Hearing. Following the first hearing, the
Court was unable to find that Mr. Hunter was likely to prove medical causation at a
hearing on the merits but issued an order for a panel of physicians.1 Doug’s Automotive
provided a panel, from which Mr. Hunter selected Dr. Sam Murrell.

       Mr. Hunter treated with Dr. Murrell but filed a Motion to Compel Medical

1
 The Court summarized the full history of Mr. Hunter’s injury and medical treatment in its prior order
and finds it unnecessary to repeat that summary here.
                                                   1
Treatment on June 4, 2019, claiming that Dr. Murrell recommended an epidural injection
that Doug’s Automotive refused to authorize. Because Mr. Hunter provided no medical
records or other information regarding the treatment or its relationship to his work injury,
the Court found it could not order Doug’s Automotive to authorize it.

        Mr. Hunter then filed another Motion for Medical Treatment on July 26, this time
with an accompanying letter from Dr. Murrell recommending an epidural steroid
injection. The Court determined that the motion was actually a request to decide his
interlocutory claim for medical benefits on the record without an evidentiary hearing.
The Court deemed the request for a decision on the record appropriate and issued a
Docketing Notice.

       Doug’s Automotive filed a Response and an Objection to Dr. Murrell’s letter, and
the Court issued a second Expedited Hearing Order on August 23. In that order, the
Court denied the request because Dr. Murrell’s letter did not address whether Mr.
Hunter’s diagnosis or the need for the epidural injection arose primarily out of and in the
course and scope of his employment.

       Mr. Hunter filed the current Expedited Hearing request on November 1, and the
Court issued a Docketing Notice. Doug’s Automotive filed no objection or response to
the hearing request or docketing notice but instead filed a Motion to Dismiss.2

        The only new proof offered by either party is Dr. Murrell’s October 7, 2019 letter.
It states:

               Dale Hunter has been under my care with complaints of low back
        pain and leg pain. He was first seen by me on September 7, 2018
        complaining of pain following an injury on 10/16/2017. While an MRI
        scan revealed degenerative changes of the lumbar spine at multiple levels, it
        also revealed a more focal right L5 foraminal disc protrusion which was felt
        to be the cause of his right sided leg symptoms. He was seen by me on
        January 28, 2019, and offered an epidural steroid injection. He ultimately
        requested to be released to full duties, but then later returned indicating that
        he wished to proceed with further treatment. At that time, an epidural
        steroid injection was again recommended, and he continues under my care

2
  The Motion to Dismiss is replete with problems. First, it is predicated in large part on allegations that
Mr. Hunter has failed to comply with requests for “medical records for the incident in question and his
previous medical records.” However, no motion to compel was ever filed, nor is there any proof that Mr.
Hunter actually possesses the records sought. Similarly, Doug’s Automotive contends Mr. Hunter failed
to respond to written discovery, but it filed no motion to compel or any certification required by Rule
0800-02-21-.17(5). Because Doug’s Automotive also failed to comply with the dispositive motion
requirements of Rule 0800-02-21-.18(1), the Court will not consider dismissal at this time. However, it
will consider some of the arguments made by Doug’s Automotive as a response to the docketing notice.
                                                    2
       awaiting the completion of the epidural steroid injection. Apparently, there
       has been some confusion as to whether the recommendation for treatment
       was the result of his underlying degenerative changes or the right L5-S1
       foraminal disc protrusion. It is my opinion that in the absence of previous
       MRI showing a pre-existing right L5 foraminal disc protrusion, that disc is
       most likely the result of his work injury of 10/16/2017. The treatment most
       recently recommended, an epidural steroid injection, is recommended to
       treat that L5-S1 disc protrusion and is felt to be related to his work injury of
       10/16/2017.

      Mr. Hunter requests an order compelling the injection recommended by Dr.
Murrell based on this new evidence.

      Doug’s Automotive contends it is not responsible for additional medical treatment
because Dr. Murrell has already found Mr. Hunter to be at maximum medical
improvement (MMI). It also appears to suggest that Dr. Murrell’s opinion is insufficient
because he said the disc protrusion is “most likely” the result of the work injury.

                        Findings of Fact and Conclusions of Law

       Mr. Hunter must provide sufficient evidence from which this Court might
determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). To do this, he must show that his alleged
injuries arose primarily out of and in the course and scope of his employment. This
includes the requirement that he 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.” “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. See Tenn. Code Ann. § 50-6-102(14).

       Dr. Murrell’s October 7 letter is the only medical opinion addressing causation.
He stated that the right L5 foraminal-disc protrusion “is most likely the result of his work
injury of 10/16/2017” and that the epidural steroid injection is recommended to treat that
condition.

       Doug’s Automotive appears to object to this opinion because it does not
specifically track the wording of section 5-6-102(14). The Court notes, however, that “a
physician may render an opinion that meets the legal standard espoused in section 50-6-
102(14) without couching the opinion in a rigid recitation of the statutory definition.”
Panzarella v. Amazon.com, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *14-15
(May 15, 2017). Dr. Murrell stated that the disc protrusion was “most likely the result”

                                              3
of Mr. Hunter’s work injury. Although this statement does not include the phrase,
“greater than fifty-percent,” it constitutes “sufficient proof from which the trial court can
conclude that the statutory requirements of an injury as defined in section 50-6-102(14)
are satisfied.” Id.

        Doug’s Automotive objects to providing additional treatment because Dr. Murrell
already placed Mr. Hunter at MMI. This argument overlooks the fact that medical
treatment does not terminate at MMI. Unless a court terminates an employee’s
entitlement to medical benefits, or approves a settlement in which the parties reach a
compromise on the issue of future medical benefits, an injured worker remains entitled to
reasonable and necessary medical treatment causally-related to the work injury in
accordance with Tennessee Code Annotated sections 50-6-204(a)(1)(A) and 50-6-
102(14)(C). Limberakis v. Pro-Tech Sec., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS
53, at *5-6 (Sept. 12, 2017).

      For these reasons, Mr. Hunter appears likely to prevail at trial in establishing that
his work injury contributed more than fifty percent in causing his need for the requested
medical treatment.

IT IS, THEREFORE, ORDERED as follows:

   1. Doug’s Automotive shall continue to provide Mr. Hunter with medical treatment
      made reasonably necessary by his October 16, 2017 injury, including any
      recommended epidural steroid injections.

   1. This case is set for a Status Hearing on January 16, 2020, at 1:30 p.m. Please call
      toll-free at 855-874-0473 to participate. Failure to call or appear might result in a
      determination of the issues without your further participation. All conferences are
      set using Central Time.

       ENTERED December 12, 2019.



                                   _____________________________________
                                   Judge Dale Tipps
                                   Court of Workers’ Compensation Claims




                                             4
                                        APPENDIX

 Exhibits:
    1. Dr. Murrell’s July 16, 2019 letter
    2. Dr. Murrell’s October 7, 2019 letter
    3. Affidavit of Dale Hunter
    4. Records from Concentra Medical Centers
    5. Records from Whole Health Chiropractic
    6. Records from The Family Medicine Group
    7. Wage Statement
    8. Expedited Request for Investigation Report
    9. Collective medical bills
    10. January 9, 2018 letter offering transitional work
    11. Candace Marshall’s notes
    12. Screenshot of January 17, 2018 text messages

 Technical record:
    1. Motion for Medical Treatment
    2. Response to Motion to Have Employer Pay Medical Expenses
    3. Response to Admission of the Purported Letter of Dr. Murrell
    4. Petition for Benefit Determination
    5. Dispute Certification Notice
    6. July 3, 2018 Expedited Hearing Order


                             CERTIFICATE OF SERVICE

      I certify that a copy of the Expedited Hearing Order was sent as indicated on
 December 12, 2019.

Name                     Certified     Fax     Via      Service sent to:
                         Mail                  Email
Dale Hunter                                       X     Dale.hunter29@yahoo.com
James Jones, Jr.,                                 X     attorneyjamesjones@gmail.com
Employer’s Attorney



                                             _____________________________________
                                             Penny Shrum, Clerk of Court
                                             Court of Workers’ Compensation Claims
                                             WC.CourtClerk@tn.gov


                                               5
