                                                                                  FILED
                                                                              January 19,,2017

                                                                                 TN COURT Of
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                                                                                  Tinu~ 9:40AM


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

James Green,                                 )   Docket No.: 2015-08-0568
           Employee,                         )
v.                                           )   State File No.: 6779-2015
                                             )
Kellogg Companies,                           )   Judge Robert Durham
           Employer,                         )
                                             )
And                                          )
                                             )
Corvel Ins. Co.,                             )
              Insurance Carrier.             )




                       COMPENSATION HEARING ORDER


        This Compensation Hearing came before the undersigned Workers' Compensation
Judge on January 11, 2017, pursuant to Tennessee Code Annotated section 50-6-239
(2016). The dispositive issue is whether Mr. Green sustained an injury to his right
shoulder on November 14, 2014, that arose primarily out of and in the course and scope
of his employment with Kellogg. If so, secondary issues include to what extent he is
entitled to past and future medical benefits, temporary disability benefits, and permanent
partial disability benefits for this injury.

       The Court holds Mr. Green did not establish by a preponderance of evidence that
he sustained injuries that arose primarily out of and in the course of his employment on
November 14, 2014.

                                       Stipulations

      At the hearing, the parties agreed to the following stipulations:

       1.    Mr. Green's alleged date of injury was November 14, 2014, and he

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provided notice to Kellogg of his alleged injury on that day.

      2.     Mr. Green's compensation rate is $932.80 for temporary disability benefits
and $848.00 for permanent partial disability benefits.

       3.     If Mr. Green's shoulder replacement is compensable, he would be entitled
to temporary total disability benefits from September 15, 2015, until December 27, 2015.

      4.     If Mr. Green's shoulder replacement is compensable, his date of maximum
medical improvement would be December 27, 2015.

      5.     Mr. Green's medical expenses for treatment of his right-shoulder injury that
were not paid by Kellogg total $56,057.13.

        6.    The designated medical expense records and the designated medical records
jointly submitted by the parties and presented as Collective Exhibits Three and Four are
admissible as evidence for consideration by the Court.

                                     History of Claim

        Mr. Green, fifty-eight, has made waffles for Kellogg for twenty-eight years, first
as an "iron adjuster" and then, for the last seventeen years, as a "wheel technician." Mr.
Green's job requires him to oversee a "wheel" of over one hundred waffle irons. He has
to regulate the batter and heat, replace any irons that are working improperly, perform
quality inspections, and periodically add "bits," i.e. small pieces of cinnamon or dried
fruit, such as blueberries and strawberries, to the batter. To add bits, Mr. Green must use
a pallet jack to bring in pallets holding boxes of bits weighing several hundred pounds to
his station. He then must reach into the box and scoop the bits out with a bucket. After
filling the bucket, he lifts it out of the box and carries it up several steps where he dumps
it into a hopper that mixes the bits into the batter.

       Mr. Green testified that on November 14, 2014, he attempted to scoop bits from a
box when he felt sudden and intense pain in his right shoulder. He averred that, while he
suffered from aches and pains in his shoulder before, he had never experienced this type
of pain and had never missed work or sought treatment for right-shoulder pain before
November 14. Kellogg offered no evidence to the contrary.

       Mr. Green testified that immediately after the incident, he reported it to his
supervisors, Jason Jackson and Bill Nabors. They sent him to see the company nurse,
Pam Ewing. Mr. Green completed an accident report, and Ms. Ewing gave him some
over-the-counter pain medication. Mr. Green then returned to work and finished his shift.

      The next day, Mr. Green started work as usual, but he testified his right-shoulder

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pain became so intense that he again sought Ms. Ewing's assistance. She gave him some
aspirin, and he returned to his job. Mr. Green stated this went on for several weeks; he
would daily communicate with Ms. Ewing about his shoulder pain, but continued to work
full-duty, although with great difficulty and often requiring assistance from co-workers.

       Mr. Green testified that on January 21, 2015, he insisted Ms. Ewing provide him
with a doctor to treat his shoulder as soon as possible. Ms. Ewing provided a panel of
physicians and informed him that Dr. Lloyd Robinson could see him quickly, but that an
appointment with one of the other doctors would result in some delay. Mr. Green chose
Dr. Robinson and signed the panel accordingly.

      Mr. Green saw Dr. Robinson, a family practitioner, the next day. (Ex. 2 at 6.) In
the medical history forms, Mr. Green stated the injury occurred two months earlier and he
had never had a similar injury in the past. (Ex. 2 at 45.) In his records, Dr. Robinson
noted Mr. Green complained of "acute pain" in his right shoulder after lifting buckets at
work. (Ex. 2 at 48.)

        In his deposition, Dr. Robinson testified Mr. Green did not advise him of a
specific work injury occurring on November 14, but stated he suffered worsening right-
shoulder pain after lifting buckets at work. Dr. Robinson ordered x-rays and noted
arthritic damage to Mr. Green's right shoulder. (Ex. 2 at 7.) He diagnosed Mr. Green
with a shoulder strain, placed him under restrictions, and ordered physical therapy, which
Carvel, Kellogg's workers' compensation administrator, never approved. (Ex. 2 at 8.)
Mr. Green did undergo an initial evaluation for physical therapy and, according to the
note, informed the therapist that he first noticed pain in his right shoulder when "reaching
to scoop a heavy scoopful of brown sugar at Kellogg's. He felt a 'pop' in his shoulder
and immediately felt an intense bum that radiated into proximal arm." (Ex. 2 at 68.)

        Dr. Robinson eventually ordered an MRI that showed extensive arthritic damage
in Mr. Green's right shoulder, but there was no rotator cuff tear or evidence of an acute
injury. (Ex. 2 at 9-11.) At that time, Dr. Robinson opined Mr. Green's underlying
arthritis was the primary cause of his symptoms and that it was not a work-related
condition. (Ex. 2 at 27.) Dr. Robinson then released Mr. Green to seek treatment with
his primary care physician. (Ex. 2 at 11.) In his deposition, Dr. Robinson continued to
opine that Mr. Green's employment contributed less than 50% to his pain complaints and
that the underlying pre-existing arthritis was the primary cause of his symptoms. (Ex. 2
at 13-14.)

       Mr. Green testified he did not feel Dr. Robinson would provide any substantive
treatment for his shoulder; therefore, he saw his family practitioner, Dr. Lee McCallum,
about a week after he began seeing Dr. Robinson. Dr. McCallum noted Mr. Green stated
the pain began a week earlier when he was "picking up a pail and heard a pop." (Ex. 4 at
51.) Dr. McCallum eventually referred Mr. Green to Dr. Kenneth Weiss, an orthopedist,

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for specialized treatment. At the time of his referral, Dr. McCallum diagnosed Mr. Green
with a "repetitive motion injury" and stated it "seems to be work-related to me." (Ex. 4
at 42.)

       At Mr. Green's initi_al visit, Dr. Weiss noted that Mr. Green stated he had a "long
history" of shoulder pain, claiming, "it has been hurting through the years." (Ex. 2 at 94.)
After attempting conservative care, Dr. Weiss eventually performed a right-shoulder
replacement on September 14, 2015. He subsequently wrote a letter opining the
following:

       Mr. Green is a patient of mine. We have been treating him for his right
       shoulder pain with glenohumeral arthrosis. We do feel that the diagnosis
       from which we are treating him is compatible with his duties that he was
       performing while at Kellogg. We do feel that the shoulder issues and his
       glenohumeral arthrosis, which required surgery, is consistent with or at
       least exacerbated by his repetitive pushing, pulling and lifting the arm while
       at work.

(Ex. 2 at 72.)

        Mr. Green worked full-duty at full pay until his surgery. After surgery, he
remained off work until December 27, 2015, and then returned to full-duty with no
restrictions. Mr. Green testified he continues to work at Kellogg as a wheel technician
with no restrictions, albeit with some difficulty. He lacks full range of motion in his
shoulder and frequently experiences pain as well as numbness and tingling in his right
shoulder and arm.

        Mr. Green entered the C-32 Medical Report of Samuel Chung, D.O. into
evidence. (Ex. 1.) In the C-32, Dr. Chung, an osteopath, opined Mr. Green did not suffer
any temporary total disability as a result of his right-shoulder condition, although the
parties stipulated that the "dates temporary total unpaid" was from September 15, 2015,
through December 27, 2015. (Ex. 1 at 5 and T.R. 1.) Dr. Chung also opined that Mr.
Green reached maximum medical improvement on December 1, 2015, although the
parties stipulated the "date of maximum recovery or return to work" from Dr. Weiss'
surgery was December 27, 2015. On the form, Dr. Chung marked that Mr. Green's
injury "more probably than not" arose from his work; however, an unsigned addendum to
the C-32 does have an "X" next to "yes" to the question as to whether the employee's
injury "arises primarily out of and in the course and scope of employment." In addition,
the form has an "X" next to "yes" to the following question:

       What is your opinion as to whether the employee's death, disablement or
       the and whether Mr. Green's "disablement or the need for medical
       treatment is shown to a reasonable degree of medical certainty that it

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       contributed more than fifty percent (50%) in causing the death, disablement
       or the need for medical treatment, considering all causes.

(Ex. 1 at 11.) Dr. Chung did not place any specific weight restrictions on Mr. Green's
right-shoulder use but did recommend he limit climbing, balancing, and working
overhead or away from his body. (Ex. l at 9.) He opined Mr. Green sustained a 14%
impairment to the body as a whole pursuant to the AMA Guides, Sixth Edition, as a result
ofhis right-shoulder injury. (Ex. 1 at 5.)

       Mr. Green testified that, following Corvel's denial, he repeatedly asked Ms. Ewing
for additional care through workers' compensation, but she told him she could not help
him given Corvel's denial. Kellogg did not offer any witnesses to counter Mr. Green's
assertions regarding his interactions with his managers or Ms. Ewing.

                       Findings of Fact and Conclusions of Law

       The Court considers the following legal principles in reaching its conclusions in
this matter. The Court must interpret the Workers' Compensation Law fairly, impartially
and in accordance with basic principles of statutory construction favoring neither the
employee nor employer. Tenn. Code Ann. § 50-6-116 (2016). Mr. Green has the burden
of proof on all essential elements of his workers' compensation claim, including
causation. 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).

       In order to establish causation, an employee must prove "to a reasonable degree of
medical certainty that [the injury] contributed more than fifty percent (50%) in causing
the death, disablement or need for medical treatment, considering all causes." Tenn.
Code Ann. § 50-6-102(14)(C) (2016). The term "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)
(2016). Thus, causation must be established by expert medical testimony, and it must be
more than "speculation or possibility" on the part of the doctor. !d.

      In this matter, both Mr. Green and Kellogg offered medical testimony. When
weighing expert testimony, the law provides the causation opinion of a physician selected
from a panel "pursuant to § 50-6-204(a)(3)" is presumed correct, but may be rebutted by
the preponderance of the evidence. Tenn. Code Ann. § 50-6-102(14)(E) (2016).
Therefore, the Court must first determine whether Dr. Robinson's opinion must be
presumed correct regarding causation.

        The parties do not dispute that Mr. Green selected Dr. Robinson's name on
January 24, 2015, from a panel provided to him by Kellogg, nor does Mr. Green dispute
that the panel met the requirements of Tennessee Code Annotated section 50-6-204(a)(3)

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(20 16). However, he did assert that it took repeated requests over a period of more than
two months for Kellogg to provide the panel, and when it did, Ms. Ewing directed him
toward Dr. Robinson.

       The Court agrees that waiting more than two months to provide a panel after an
injury is reported is improper; however, the fact remains that Kellogg did eventually
provide one that complied with the law. As to his assertion that Ms. Ewing "directed"
him to Dr. Robinson, Mr. Green testified he demanded to see a doctor as soon as possible
and Ms. Ewing told him Dr. Robinson was available right away, but it would take some
time to get an appointment with the other physicians on the panel. Mr. Green offered no
evidence disputing Ms. Ewing's assertion, and the fact that he obtained an appointment
with Dr. Robinson the following day tends to corroborate her statement. He also offered
no evidence that he would not have been allowed to choose one of the other physicians
had he decided to do so. Thus, the Court finds Mr. Green chose Dr. Robinson from a
proper panel and further holds that Dr. Robinson's opinion is entitled to a presumption of
correctness pursuant to Tennessee Code Annotated section 50-6-102(14)(E) (2016).

         In his deposition, Dr. Robinson opined to a reasonable degree of medical certainty
that Mr. Green's shoulder pain was primarily caused by his underlying, pre-existing
arthritis, which was not a work-related condition. In order to prevail, Mr. Green must
rebut this opinion by a preponderance of the evidence. When weighing the evidence
offered by Mr. Green against Dr. Robinson's testimony, the Court finds Mr. Green failed
to meet this burden.

        Mr. Green offered the C-32 of Dr. Chung in an attempt to rebut Dr, Robinson's
testimony. "In evaluating expert medical opinions, a trial judge may consider, among
other things, the qualifications of the experts, the circumstances of their evaluation, the
information available to them, and the evaluation of the importance of that information
by other experts." Venable v. Superior Essex, Inc., No. 2015-05-0582, 2016 TN Wrk.
Comp. App. Bd. LEXIS 56, at *6 (Tenn. Workers' Comp. App. Bd. Nov. 2, 2016). "A
trial judge has the discretion to conclude that the opinion of one expert should be
accepted over that of another expert." Sanker v. Nacarato Trucks, Inc., No. 2016-06-
0101,2016 TN Wrk. Comp. App. Bd. LEXIS 27, at *11-12 (citation omitted). The Court
finds Dr. Robinson's opinion more persuasive for several reasons.

       First, Dr. Chung's testimony is offered through a C-32 written medical report as
opposed to a deposition. While a C-32 is certainly admissible, it is often less effective
than a deposition given that the evidence contained within is not subject to explanation or
cross-examination. Second, Dr. Chung is an osteopath, which requires less training and
education than a medical doctor, as illustrated by Dr. Chung's CV attached to the C-32.
Again, while an osteopath is qualified by law to testify as to causation, the Court finds
Dr. Robinson's training and education to be more persuasive in this instance.


                                            6
        Finally, the C-32 completed by Dr. Chung contained numerous errors that did little
to create confidence in its reliability. It indicated Mr. Green did not suffer any temporary
total disability even though it is undisputed he was off work for three months following
surgery. It also stated he reached maximum medical improvement on December 1, 2015,
although there is no indication as to how Dr. Chung arrived at this date when the parties
agreed Mr. Green returned to work on December 28. Finally, the C-32 contained the
causation standard that applied to injuries prior to July 1, 2014, and has no application to
Mr. Green's injury. In fact, due to this error, the C-32 fails to rebut Dr. Robinson's
opinion at all unless the document attached to the back of the C-32, which does state the
correct causation standard, is considered an addendum to the report. However, while it
may have been intended as an addendum, the document is unsigned. There is also no
reference in the C-32 to the document or the opinions contained within it. Furthermore,
the second question on the form, regarding "the employee's death, disablement or need
for treatment," makes little sense when read in its entirety. Given the factors stated
above, the Court cannot find Dr. Chung's C-32 is sufficient to overcome Dr. Robinson's
opinion regarding causation. 1

        Of course, Dr. Chung's C-32 is not the only evidence offered by Mr. Robinson
regarding causation. He also testified that he experienced intense pain in his right
shoulder while using a bucket to scoop out "bits," and he had never experienced such
symptoms before. While lay testimony cannot, in and of itself, serve to establish
causation, it can certainly corroborate the testimony provided by experts. However, in
this instance, while the Court has no reason to doubt Mr. Robinson's testimony that the
November 14, 2014 event exacerbated his condition, he also testified he suffered from
"aches and pains" in his shoulder before this event. The records of Dr. McCallum and
Dr. Weiss, who both recorded that Mr. Robinson told them he had suffered from shoulder
pain for years, corroborated this testimony. Furthermore, while Dr. McCallum and Dr.
Weiss indicated in their records that it "seemed" Mr. Robinson's shoulder complaints
were work-related, and his condition was consistent with his employment at Kellogg,
neither opined that Mr. Robinson's right-shoulder condition arose primarily out of and in
the course and scope of the work incident on November 14, 2014. See Tenn. Code Ann.
§ 50-6-012(14)(A) (2016). As a result, the Court finds the additional evidence offered by
Mr. Green, in conjunction with Dr. Chung's C-32, is still insufficient to overcome the
presumption of correctness afforded Dr. Robinson's causation opinion.

       Accordingly, the Court finds Mr. Green failed to prove by a preponderance of the
evidence that he sustained an injury that primarily arose out of and in the course and
scope of his employment on November 14, 2014 with Kellogg. See Tenn. Code Ann.§
50-6-102(14) (2016). Given the above finding, it is unnecessary to address other issues
raised by the parties.
1
  The Court would note that, unfortunately, neither party decided to obtain the testimony of Dr. Weiss, who would
most likely have the most credible opinion regarding the cause of Mr. Green's shoulder condition and the need for
shoulder-replacement surgery.

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     IT IS, THEREFORE, ORDERED as follows:

1.      Mr. Green's claim for workers' compensation benefits is denied.

2.    This Compensation Order constitutes a final adjudication upon the merits of Mr.
Green's claim . .

3.    The $150.00 filing fee for this this cause is taxed to Kellogg, pursuant to Rule
0800-02-21-.07 (2015) of the Tennessee Compilation Rules and Regulations.

4.     Kellogg shall prepare and file a Statistical Data Form within ten business days of
the date of entry of this Order.

ENTERED THIS THE /~ TH DAY OF January, 2017.



                       ~-a-m_,_J_u_~_g_e                      _____________
                                  Court of Workers' Compensation Claims



                                      APPENDIX

Exhibits:

1.      Form C-32 of Dr. Samuel Chung with attachments
2.      Deposition of Dr. Lloyd Robinson with attachments
3.      Designated Medical Bills
4.      Designated Medical Records
5.      Form C-42

Technical Record:

1.      Notice of Stipulations for Trial
2.      Notice of Disputed Issues for Trial
3.      Employer's Pre-Hearing Statement
4.      Employee's Pre-Hearing Statement
5.      Order Denying Motion to Compel Discovery
6.      Employer's Response in Opposition to Motion to Compel Discovery
7.      Motion to Compel Discovery
8.      Dispute Certification Notice

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9.     Initial Hearing Order
10.    Employee's Witness List
11.    Amended Employee's Lay Witness List
12.    Employer's Expert Witness List
13.    Employer's Lay Witness List
14.    Transfer Order

                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Compensation Hearing Order
was sent to the following recipients by the following methods of service on this the _19th
day of January, 2017.

Name                     Certified     Via        Via    Service sent to:
                          Mail         Fax       Email
Shannon T oon                                     X      stoon@taylortoon.com
Thomas J. Smith                                   X      tsmith@spicerfirm.com



                                                rum, Clerk of Court
                                         Court Workers' Compensation Claims
                                         WC.CourtClerk@tn.gov




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