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

MARGARET VIRGIL                                         )    Docket No.: 2015-05-0274
         Employee,                                      )
v.                                                      )    State File Number: 43911-2015
NISSAN NORTH AMERICA                                    )
         Employer.                                      )    Judge Dale Tipps
                                                        )


                             COMPENSATION HEARING ORDER


       This matter came before the undersigned Workers’ Compensation Judge on July
13, 2016, for a Compensation Hearing pursuant to Tennessee Code Annotated section 50-
6-239 (2015). The central legal issues are: (1) whether the condition for which the
employee, Margaret Virgil, seeks benefits arose primarily out of and in the course and
scope of her employment with the employer, Nissan North America; (2) whether Ms.
Virgil is entitled to permanent disability benefits; and (3) whether Ms. Virgil is entitled to
past or future medical benefits.1 For the reasons set forth below, this Court finds that Ms.
Virgil failed to establish by a preponderance of the evidence that she sustained an injury
primarily arising out of and in the course and scope of her employment with Nissan.
Accordingly, the Court holds that Ms. Virgil is not entitled to the requested medical and
permanent disability benefits.

                                             History of Claim

       Ms. Virgil is a fifty-nine-year-old resident of Rutherford County, Tennessee who
worked at Nissan for thirty-one years. Over that time, she performed a number of jobs,
including material handling from 1991 until May 2015. This work included lifting and
tugging small parts, as well as driving a forklift. Prior to 2015, she had no chronic back
pain, but only normal soreness due to twisting while driving the forklift.

        Ms. Virgil began having back pain in the spring of 2015, but she did not initially
1
 A complete listing of the technical record and exhibits admitted at the Compensation Hearing is attached to this
Order as an appendix.

                                                       1
seek treatment through workers’ compensation because she felt an injury claim might
affect her bid on a new job. She ultimately got that job, which involved inspecting
vehicles as they came down the line. Her new job required more bending and stooping,
as her duties included raising the hood, checking for labels, checking fluid in power
steering and brakes, opening doors, and inspecting weather-stripping.

       Ms. Virgil’s new job duties caused her back pain to worsen until she reported the
problem to Nissan on June 7, 2015, and requested medical treatment.2 Nissan sent her to
the onsite medical clinic, where she received a panel of physicians. Ms. Virgil selected
Dr. Jeffrey Hazlewood from the panel on June 8, 2015. (Ex. 8.)

       Dr. Hazlewood saw Ms. Virgil on June 17, 2015. He noted she had a twenty-year
history of occasional low back pain. She began having low back pain after she began a
job requiring more standing and “a lot of bending.” Dr. Hazlewood characterized Ms.
Virgil’s pain as 60% in her low back and 40% in her right thigh. He did not feel Ms.
Virgil’s pain was discogenic, but rather mechanical, and he noted she had no radicular
symptoms. After his examination, Dr. Hazlewood’s impression was “non-specific back
pain with probably some musculoligamentous component, probably degenerative spine
disease with a history of pre-existing back problems intermittently.” (Ex. 10.)

           Dr. Hazlewood addressed causation as follows:

           I cannot state there is a structural injury here or relation to her work given
           the total assessment. Per page 199,3 “The presence of non-specific low
           back pain cannot be construed as indicative of low back injury.” There has
           been no association scientifically of lifting, awkward postures, or repetitive
           bending to idiopathic/non-specific back pain. . . . In summary, I cannot
           state this is a work related injury given this presentation.

Id.

       After receiving Dr. Hazlewood’s office note, Nissan denied Ms. Virgil’s claim on
June 23, 2015. (Ex. 9.) She then sought treatment under her health insurance with Dr.
William Newton on December 21, 2015, for low back and right leg pain. She gave a
history of:

           a several year history of pain affecting the lower back but this has gotten
           progressively worse over the past several weeks. The patient denies any

2
  Ms. Virgil worked the night shift, so her date of injury variously appears as June 7, when she began her shift, and
June 8, when her shift ended. For consistency, and because Nissan does not dispute notice or the alleged date of
injury, the Court adopts June 7, 2016, as the injury date for the purposes of this Order.
3
    Of the AMA Guides to the Evaluation of Disease and Injury Causation, Second Edition.

                                                         2
       injury or inciting event although she does have a labor intensive job where
       she is doing lots of bending and lifting as well as being on her feet for long
       periods of time. She recently changed her job duties. She used to be a
       forklift driver which was much better on her lower back. The patient states
       this is not a workman’s compensation claim or injury.

(Ex. 4 at 35.)

       Dr. Newton diagnosed piriformis syndrome of the right side, lumbar spondylosis,
and semimembranosus bursitis. He recommended physical therapy and exercise, and
prescribed Meloxicam. He did not feel Ms. Virgil’s condition required surgical
intervention. Id. at 37-38. In a questionnaire dated January 4, 2016, Dr. Newton
indicated Ms. Virgil’s lower back and upper leg pain was the result of lumbar
spondylosis. He also opined her condition was not primarily caused by her employment
at Nissan. (Ex. 10.)

       Ms. Virgil underwent an independent medical examination (IME) with Dr.
Stephen Neely on May 10, 2016. After examining Ms. Virgil and reviewing her medical
records, Dr. Neely noted she had a nerve conduction study and EMG in February 2016
that showed acute radiculopathy on the right. He assigned an impairment rating of 12%
to the body, based on motion segment lesion. Also noting she described a history of
increasing pain in the workplace, he stated, “I feel that this is a permanent partial
workplace injury and the award is commensurate.” (Ex. 1.)

       The parties took the depositions of Dr. Hazlewood and Dr. Neely. In his
deposition, Dr. Hazlewood described Ms. Virgil’s complaints as:

       [M]echanical, nonspecific low back pain. It did not sound like a disc
       herniation. It did not sound like true radicular pain. There was no evidence
       of radiculopathy on exam. So this was a typical chronic back pain and an
       intermittent back pain with a recurrent episode in an approximately 60-
       year-old that had had back pain in the past. I would imagine she probably
       has degenerative spine disease. But, again, no acute pathology on exam
       objectively.

(Ex. 10 at 9.) When asked about causation, he testified:

       I looked at her causation analysis as we’re trained to do, and looked at the
       various factors. First of all, there was no acute event that caused an acute
       onset of back pain. It was a gradual onset. Number 2, she had preexisting
       back pain. Number 3, she was approximately 60 years old. So when one
       looks at these factors, and especially the epidemiology by research
       literature, and we use the AMA Guides to the Evaluation of Disease and

                                             3
       Injury Causation, Second Edition, and they clearly state that such a case is
       not construed as indicative of a low back injury, . . . that this was a typical
       idiopathic back pain, in my opinion, and there were many more risk factors
       than her employment. Therefore, it was less than 50 percent related to her
       employment and not, in my opinion, related to her job specifically.

Id. at 9-10.

        Dr. Hazlewood disagreed with Dr. Neely’s 12% rating because there was no
evidence of a surgical or congenital fusion, which is required for a rating based on a
Class II motion segment lesion. He also noted the absence of radiculopathy in either his
or Dr. Newton’s examination, which would be necessary to justify a 12% rating. He
opined that the correct rating, pursuant to the AMA Guides, would be 2%. However, he
felt this rating pre-existed her current complaints and estimated her impairment for the
current flare-up was 0%. Id. at 12-15. Regarding the EMG/nerve conduction study
results noted by Dr. Neely, Dr. Hazlewood testified those symptoms developed after he
saw Ms. Virgil in June 2015. Id. at 16.

       In his deposition, Dr. Neely confirmed his opinion that Ms. Virgil’s injury was
more than fifty percent caused by her work at Nissan and that she retained a 12%
permanent impairment. He based this on the finding of “acute S1 radiculopathy.” (Ex. 3
at 16, 43.) He acknowledged, however, that Ms. Virgil exhibited no signs of
radiculopathy when he saw her, or when she saw Dr. Hazlewood and Dr. Newton. Id. at
22-24, 32. He also confirmed he used an edition of the Sixth Edition of the AMA Guides
that was later revised by the publisher. Id. at 33-36.

       Following his deposition, Dr. Neely produced a revised IME report, omitting his
original reference to the EMG test results and correcting his original reference to a
positive straight leg raise test. He changed his diagnosis to “chronic lumbosacral strain
with non-verifiable radicular complaints” and his impairment opinion to 2%. (Ex. 2.)

      Ms. Virgil filed a Petition for Benefit Determination on July 28, 2015, seeking
medical benefits. The parties did not resolve the disputed issues through mediation, and
the Mediating Specialist filed a Dispute Certification Notice (DCN) on August 7, 2015.
Following post-discovery mediation, the Mediating Specialist filed a second DCN on
June 20, 2016.

       At the Compensation Hearing, Ms. Virgil asserted she is entitled to medical
treatment, reimbursement of medical expenses, temporary disability benefits, and
permanent disability benefits for a back injury arising primarily out of and in the course
and scope of her employment. She contended she rebutted the statutory presumption of
correctness attached to the causation opinion of Dr. Hazlewood. Specifically, she argued
that Dr. Neely based his causation opinion on more reliable and objective information

                                             4
than did Dr. Hazlewood, especially when considered in conjunction with the EMG/nerve-
conduction findings.

       Nissan countered that Ms. Virgil is not entitled to any additional workers’
compensation benefits because she failed to present sufficient evidence that any injury
arose primarily out of and in the course and scope of her employment. It argued that, as
the authorized treating physician (ATP), Dr. Hazlewood’s causation opinion that Ms.
Virgil’s condition was unrelated to her work is presumed correct under Tennessee Code
Annotated section 50-6-102(14)(E) (2015). It further contended Dr. Neely’s opinion is
not sufficient to overcome the presumption of correctness attached to the ATP opinion.

                        Findings of Fact and Conclusions of Law

       The following legal principles govern this case. Ms. Virgil has the burden of
proof on all essential elements of her 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). “[A]t a compensation hearing where the injured employee has
arrived at a trial on the merits, the employee must establish by a preponderance of the
evidence that he or she is, in fact, entitled to the requested benefits.” Willis v. All Staff,
No. 2014-05-0005, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Tenn. Workers’
Comp. App. Bd. Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-239(c)(6) (2015). In
analyzing whether Ms. Virgil has met her burden, the Court will not construe the law
remedially or liberally in her favor, but instead must construe the law fairly, impartially,
and in accordance with basic principles of statutory construction favoring neither Ms.
Virgil nor Nissan. See Tenn. Code Ann. § 50-6-116 (2015).

                                      Compensability

       Ms. Virgil’s burden includes proving her injury arose primarily out of and in the
course and scope of her employment. Tenn. Code Ann. § 50-6-102(14) (2015). To do
so, she must show her injury was “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.” Tenn. Code Ann. § 50-6-102(14)(A) (2015). Further, she
must show, “to a reasonable degree of medical certainty that it 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) (2015).

        Applying these principles to the facts of this case, the Court finds Ms. Virgil has
failed to carry her burden. She did describe a set of incidents, identifiable by time and
place of occurrence, and Nissan submitted no proof to the contrary. However, the Court
finds Ms. Virgil has not established that those incidents contributed more than fifty
percent in causing her low back condition.


                                              5
        Although Ms. Virgil questioned the efficacy of Dr. Hazlewood’s examination, it is
undisputed that his examination included palpating her back for spasm, measuring spinal
and hip range of motion, and performing bilateral straight leg raise tests. He also
performed neurologic testing, including motor testing, reflexes, and pinprick tests. Dr.
Hazelwood’s failure to order any diagnostic testing or imaging is not determinative, as he
testified that Ms. Virgil’s condition did not warrant additional testing. Further, the Court
finds it significant that Ms. Virgil’s personal physician, Dr. Newton, reached the same
conclusion as Dr. Hazlewood after reviewing an MRI of her low back, and that both
doctors noted Ms. Virgil’s several-year history of back pain. Finally, Dr. Hazlewood
specifically noted Ms. Virgil had no radicular symptoms, and referred to the Second
Edition of the American Medical Association’s Guides to the Evaluation of Disease and
Injury Causation in formulating his causation opinion.4

       Similarly, Ms. Virgil’s contention that Dr. Hazlewood’s examination lacked “any
meaningful review of Ms. Virgil’s medical records or employment records” is
unpersuasive. Dr. Hazlewood did review the clinic record from Nissan’s onsite provider.
As this constituted the sum total of her medical treatment to date, it might more
accurately be said that he reviewed all of Ms. Virgil’s records available at the time.
Further, Dr. Hazlewood reviewed Ms. Virgil’s EMG/nerve conduction studies during his
deposition and explained why they changed neither his diagnosis nor his causation
opinion. As for the lack of a job description, Dr. Hazlewood noted in his initial
evaluation that Ms. Virgil had recently changed job duties, which required a great deal of
standing and bending. As these are the activities that Ms. Virgil contends caused her
injury, the Court finds this description of her job duties to be a sufficient basis for Dr.
Hazlewood’s opinion.

      Finally, while Dr. Neely disagreed with Dr. Hazlewood’s causation opinion, this
does not automatically result in a finding that Dr. Hazelwood’s opinion was incorrect.
Ms. Virgil presented no medical proof suggesting Dr. Hazlewood’s method or opinion
were fundamentally unsound. Therefore, in order to meet her burden of overcoming the
presumption of correctness of Dr. Hazlewood’s opinion, Ms. Neely must establish that
Dr. Neely’s methodology or conclusions were more reliable.

       The Court cannot find Ms. Virgil has met this burden. With the exception of the
EMG/nerve conduction study results, Dr. Neely’s examination does not appear to differ
greatly from that of Dr. Hazlewood. He also performed range of motion measurements,
straight leg raise testing, and neurologic tests such as reflexes and sensation. It is not
clear whether Dr. Neely initially relied on the electrodiagnostic test results in his original
IME diagnosis,5 but as his revised IME does not mention those tests, it appears they did

4
 While the use of this publication is not statutorily required or favored, it suggests that Dr. Hazlewood’s opinion
was not a rash conclusion after an inadequate examination.
5
    It appears Dr. Neely relied on the EMG/nerve conduction study results more for the impairment rating calculation

                                                          6
not factor into his final diagnosis or causation opinion. In short, Dr. Neely’s examination
and methodology are not notably different from Dr. Hazlewood’s, much less superior to
the extent necessary to overcome the presumption.

       Accordingly, this Court concludes that Ms. Virgil failed to establish by a
preponderance of the evidence that she sustained a compensable injury primarily arising
out of and in the course and scope of her employment with Nissan.

IT IS, THEREFORE, ORDERED as follows:

    1. Ms. Virgil’s cause of action against Nissan and its workers’ compensation carrier
       is hereby dismissed with prejudice against refiling of same.

    2. Costs of this cause of $150.00 are assessed against Nissan pursuant to Tennessee
       Compilation Rules and Regulations 0800-02-21-.07 (2015), to be paid within five
       days of this order becoming final.

    3. Nissan shall prepare and file a statistical data form within ten business days of the
       date of this order, pursuant to Tennessee Code Annotated section 50-6-244 (2015).

         ENTERED this the 27th day of July, 2016.


                                   _____________________________________
                                         Dale Tipps
                                         Workers’ Compensation Judge


Right to Appeal:

      Tennessee Law allows any party who disagrees with this Compensation Hearing
Order to appeal the decision to the Workers’ Compensation Appeals Board or the
Tennessee Supreme Court. To appeal your case to the Workers’ Compensation Appeals
Board, you must:

    1. Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal.”

    2. File the completed form with the Court Clerk within thirty calendar days of the
       date the Workers’ Compensation Judge entered the Compensation Hearing Order.




than his causation opinion.

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   3. Serve a copy of the Compensation 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 party filing the notice of appeal, 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 fifteen calendar days of the filing
      of the Compensation Hearing Notice of Appeal. Alternatively, the party filing the
      appeal may file a joint statement of the evidence within fifteen calendar days of
      the filing of the Compensation 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. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (2015).

   6. After the Workers’ Compensation Judge approves the record and the Court Clerk
      transmits it to the Workers’ Compensation Appeals Board, the appeal will be
      docketed and assigned to an Appeals Board Judge for review. At that time, a
      docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
      calendar days to submit briefs to the Appeals Board for consideration. See Tenn.
      Comp. R. & Regs. 0800-02-22-.02(3) (2015).

      To appeal your case directly to the Tennessee Supreme Court, the
Compensation 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, this Order will become final by operation of law thirty calendar days after
entry pursuant to Tennessee Code Annotated section 50-6-239(c)(7).



                                             8
                                      APPENDIX

Technical record:

   1.   Petition for Benefit Determination
   2.   Post-Discovery Dispute Certification Notice
   3.   Employee’s Pre-Hearing Brief
   4.   Employer’s Compensation Hearing Brief
   5.   Pre-Compensation Hearing Statement

The Court did not consider attachments to Technical Record filings unless admitted into
evidence during the Compensation Hearing. The Court considered factual statements in
these filings or any attachments to them as allegations unless established by the evidence.

Exhibits:

   1. Dr. Neely’s Original IME report
   2. Dr. Neely’s Revised IME report
   3. Transcript of Dr. Neely’s May 24, 2016 deposition
   4. Indexed Medical Records
   5. Pages 141-143 of Ms. Virgil’s Personnel File
   6. First Report of Injury
   7. Employee/Manager Medical Statement
   8. C-42 Physician Panel
   9. C-23 Notice of Denial
   10. Transcript of Dr. Hazlewood’s June 7, 2016 deposition
   11. June 8, 2015 treatment notes from Nissan’s on-site clinic
   12. December 21, 2015, records from Murfreesboro Medical Clinic
   13. Dr. Newton’s causation questionnaire
   14. Ms. Virgil’s written discovery responses




                                            9
                            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 27th
day of July, 2016.

 Name                     Certified    Via         Via    Service sent to:
                           Mail        Fax        Email
 Zachary Wiley                                     X      zwiley@forthepeople.com

 Thomas Tucker                                     X      tomtucker@bellsouth.net




                                         ______________________________________
                                           PENNY SHRUM, COURT CLERK
                                                wc.courtclerk@tn.gov




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