                                                                                 FILED
                                                                               Mar 20, 2019
                                                                               10:58 AM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




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

DANNY APPLETON,                             )   Docket No. 2018-08-1011
         Employee,                          )
v.                                          )
KELLOGG COMPANY,                            )   State File No. 13236-2018
         Employer,                          )
And                                         )
OLD REPUBLIC INSURANCE CO.,                 )   Judge Deana Seymour
         Carrier.                           )
                                            )

  EXPEDITED HEARING ORDER DENYING MEDICAL AND TEMPORARY
                    DISABILITY BENEFITS


       Danny Appleton requested additional medical and temporary disability benefits
for a back injury. Kellogg Company insisted it paid all benefits to which he is entitled.
The Court considered the issues at an Expedited Hearing on March 6, 2019, and holds
Mr. Appleton is not entitled to additional benefits at this time.

                                   History of Claim

       Mr. Appleton injured his low back when he tried to open a surge bin on February
16, 2018. Kellogg sent him to an urgent care clinic. He was diagnosed with low-back
pain and placed on light-duty restrictions for two days.

       When Mr. Appleton’s symptoms did not resolve, Kellogg sent him for additional
treatment with Dr. Lloyd Robinson. Dr. Robinson diagnosed him with low-back pain,
ordered therapy, prescribed medication, and placed him on light duty. He also ordered an
MRI and referred Mr. Appleton to an orthopedist.

      Kellogg provided a panel of physicians from which Mr. Appleton selected Dr.
John Brophy. Dr. Brophy diagnosed lumbar myofascial pain associated with pre-existing




                                           1
minimal Grade 1 spondylolisthesis with bilateral pars defects. 1 He placed Mr. Appleton
on restricted duty and recommended progressing to a home exercise program with anti-
inflammatories. Dr. Brophy noted that “if his symptoms fail to improve with the exercise
program, the presumption is that the lack of improvement is related to his L5-S1 pre-
existing spondylolisthesis and pars defects” and “would be more appropriately handled
through his personal insurance[.]” He completed a Final Medical Report, indicating that
Mr. Appleton reached maximum medical improvement for his work injury on May 25,
2018, and could return to unrestricted work. Dr. Brophy did not anticipate the need for
future medical treatment and concluded that the injury did not result in permanent
impairment. Based on this opinion, Kellogg filed a Notice of Controversy, stating that
Mr. Appleton’s “[i]njury/pain to lower back [was] not causally work related but due to
[a] pre-existing condition.”

        After receiving Kellogg’s Notice of Controversy, Mr. Appleton began treating on
his own with Dr. Ashley Park. Dr. Park recorded, “[a]fter a close review of this case, it is
clearly apparent that Mr. Appleton’s onset of low back pain can be directly attributed to
circumstances which [sic] occurred in the workplace on 02/16/2018. Although he has
received conservative care, I do not believe it has been optimal.” Dr. Park restricted Mr.
Appleton to a five-day workweek and ordered diagnostic medial branch blocks to the
bilateral L4-5 and L5-S1 facets. He also recommended that Mr. Appleton wear a lumbar
corset during physical activity.

        On January 24, 2019, Dr. Park indicated Mr. Appleton’s work injury resulted in
low-back pain, due in part to a facet capsular sprain, which responded well to medial
branch blocks of the lumbar facets. Dr. Park also noted that Mr. Appleton requested a
return to full-duty work and that Mr. Appleton would contact him as to his condition once
he attempted unrestricted work.

       At the hearing, Mr. Appleton urged the Court to reject Dr. Brophy’s causation
opinion since Dr. Brophy only evaluated him once. He relied on Dr. Park’s medical
records as to causation and to show the treatment he underwent after Dr. Brophy placed
him at MMI.

       Kellogg countered that it accepted this claim and provided benefits until Dr.
Brophy released Mr. Appleton at MMI with no further treatment under workers’
compensation. It argued that Dr. Brophy related ongoing symptoms to Mr. Appleton’s
pre-existing back condition, which should be covered by his personal insurance. Kellogg
also contended that Dr. Brophy’s opinion is given a rebuttable presumption of correctness
on the issues of causation and medically necessary treatment.



1
    The MRI findings “appeared chronic in age.”


                                                  2
                       Findings of Fact and Conclusions of Law

      At an Expedited Hearing, Mr. Appleton 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 present issue turns on whether Mr.
Appleton’s current condition is related to his work injury of February 16, 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, considering all causes.”
Tenn. Code Ann. § 50-6-102(13)(B) (2018). Medical evidence is generally required to
establish a causal relationship, “[e]xcept in the most obvious, simple and routine cases.”
See Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at
*10-12 (May 18, 2017). The Court holds this is not an obvious, simple and routine case,
and medical evidence is required to establish a causal relationship.

        Under Tennessee Code Annotated section 50-6-102(14)(E), “[t]he opinion of the
treating physician, selected by the employee from the employer’s designated panel of
physicians pursuant to § 50-6-204(a)(3), shall be presumed correct on the issue of
causation but this presumption shall be rebuttable by a preponderance of the evidence.”
Further, it is well established that a “trial judge has the discretion to determine which
testimony to accept when presented with conflicting expert opinions.” Bass v. The Home
Depot U.S.A., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 36, at *9-10 (May 26, 2017)
(internal citations omitted). When there are conflicting medical opinions, “the trial judge
must obviously choose which view to believe. In doing so, [the trial judge] is allowed,
among other things, to consider the qualifications of the experts, the circumstances of
their examination, the information available to them, and the evaluation of the importance
of that information by other experts.” Brees v. Escape Day Spa & Salon, 2015 TN Wrk.
Comp. App. Bd. LEXIS 5, at *14 (Mar. 12, 2015).

      In this case, the Court finds that Dr. Brophy is the treating physician selected by
Mr. Appleton from Kellogg’s designated panel. Thus, his opinion on causation is
presumed correct. Dr. Brophy determined that if Mr. Appleton’s symptoms did not
improve by May 25, 2018, “the lack of improvement is related to his L5-S1 pre-existing
spondylolisthesis and pars defects.”

      Dr. Park noted that Mr. Appleton’s work injury resulted in his low-back pain and
that Mr. Appleton suffered, in part, from a facet capsular sprain, which responded well to
medial branch blocks to the lumbar facets.

      The Court finds both opinions reasonable. However, after careful consideration,
the Court holds the opinion of Dr. Brophy, which is entitled to the statutory presumption


                                            3
of correctness, prevails. Dr. Brophy reviewed the medical records, analyzed the MRI,
thoroughly examined Mr. Appleton and attributed his ongoing complaints to his pre-
existing spondylolisthesis and pars defects, not the low-back injury. The Court finds this
presumption was not rebutted by a preponderance of the evidence. Therefore, based upon
the evidence and the applicable legal principles, the Court holds Mr. Appleton failed to
satisfy the burden of proving he would likely prevail at a hearing on the merits.

      IT IS, THEREFORE, ORDERED as follows:

   1. The Court denies Mr. Appleton’s claim against Kellogg for the requested medical
      and temporary disability benefits at this time.

   2. Dr. John Brophy shall remain the authorized treating physician under Tennessee
      Code Annotated section 50-6-204 for reasonable and necessary medical treatment
      related to Mr. Appleton’s February 16, 2018 injury.

   3. This matter is set for a telephonic Scheduling Hearing on May 20, 2019, at 10:00
      a.m. Central Time. You must call toll-free at 866-943-0014 to participate in the
      hearing. Failure to call may result in a determination of the issues without your
      participation.

      ENTERED March 20, 2019.



                                  ____________________________________
                                  Deana C. Seymour, Judge
                                  Court of Workers’ Compensation Claims




                                            4
                                       APPENDIX

Technical record:

TR1.   Petition for Benefit Determination
TR2.   Dispute Certification Notice
TR3.   Request for Expedited Hearing, along with Affidavit of Danny Appleton
TR4.   Employer’s Pre-Hearing Brief for Expedited Hearing, with attachments

Exhibits:

1.     Employer Medical Records Table of Contents
2.     Medical Records Submitted by Employee
3.     Agreement Between Employer/Employee Choice of Physicians, selecting Dr. John
       Brophy


                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on March 20, 2019.

 Name                        Certified Via       Via      Service sent to:
                             Mail      Fax       Email
 Danny Appleton,                                   X      dannyappleton11@att.net
 Self-Represented
 Employee
 Thomas Smith,                                      X     tsmith@spicerfirm.com
 Employer’s Attorney



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




                                             5
                           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.
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-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, I 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 All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am 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. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     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




I 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

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
