                                                                                             FILED
                                                                                          Oct 11, 2018
                                                                                          11:08 AM(CT)
                                                                                       TENNESSEE COURT OF
                                                                                      WORKERS' COMPENSATION
                                                                                             CLAIMS




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

COURTLAND LINDSAY,                                 )   Docket No. 2018-06-1247
         Employee,                                 )
v.                                                 )
WESTERN EXPRESS,                                   )   State File No. 46898-20018
         Employer                                  )
and                                                )
PMA INSURANCE CO.,                                 )   Judge Joshua Davis Baker
         Carrier.                                  )

      EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS

       This claim came before the Court on October 9, 2018, for an expedited hearing of
Mr. Lindsay’s request for temporary disability and medical benefits. Western Express
opposed his request, arguing that he would be unlikely to prevail at a hearing on the
merits in proving he suffered an injury arising primarily out of and in the course and
scope of his employment due a negative medical causation opinion. The Court agrees
and denies his request for benefits.

                                          Claim History

      This claim concerns an alleged fall, or a series of alleged falls, that injured Mr.
Lindsay’s right knee. According to his Petition for Benefit Determination and testimony,
on June 18, 2018, Mr. Lindsay slipped and nearly fell down steps while training in “load
securement.”

       A few days before the June 18 incident, Mr. Lindsay injured his right knee in a
non-work-related accident.1 He went to the emergency room following that accident and
was diagnosed with a patella fracture. He wore a brace and used crutches because of the
non-work-related accident. Mr. Lindsay claimed the June 18 incident aggravated his
patella injury.
1
 The cause of the non-work-related accident prompted significant testimony and dispute. According to
Mr. Lindsay, he injured his knee when he slipped while jogging. Jeff Partlow, another Western Express
employee, provided an affidavit and stated he heard Mr. Lindsay tell co-employees that he hurt himself
when he slipped on wet grass while trying to jump over a fence.
        Western Express provided a panel for the alleged June 18 injury, and Mr. Lindsay
first went to Concentra. According to the medical notes, he told the Concentra physician
he continued to suffer from knee pain after a jogging accident and developed “new pain”
in his right ankle. He also complained of foot bruising. The Concentra physician
diagnosed a right ankle sprain and a right knee contusion. He referred Mr. Lindsay for an
MRI, which showed a complete tear of the patellar tendon and a partial tear of the lateral
patellar tendon. The notes from Concentra made no mention of a patella fracture.

       After the MRI, Mr. Lindsay went to see Dr. Joseph Wieck, a neurosurgeon he
chose from a panel. At the first visit, Mr. Lindsay told Dr. Wieck he previously injured
his knee when he fell while jogging. Dr. Wieck reviewed the x-ray from Concentra and
the MRI results. He confirmed the patella-fracture diagnosis and the tendon tears. He
recommended surgical repair for the tendon but also indicated that Mr. Lindsay’s injuries
arose from the jogging accident rather than the June 18 incident.2 After receiving this
opinion, Western Express denied Mr. Lindsay’s claim.

       Mr. Lindsey testified that the workplace accident aggravated his previous patella
injury. He also stated that Dr. Wieck failed to treat his injuries appropriately. He
expressed a belief that Western Express denied his claim as a form of retaliation.
Western Express asked that the claim be denied for lack of proof of medical causation.

                           Findings of Fact and Conclusions of Law

       As in all workers’ compensation actions, Mr. Lindsay has the burden to prove the
essential elements of his claim. However, since this is an expedited hearing, he need only
present 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). The Court holds he failed to carry his
burden of proving a causal relationship between his injury and a workplace accident.

        While most of the testimony centered on factual disputes, the problem with this
claim for temporary benefits concerned the medical proof. To recover benefits, Mr.
Lindsay must prove he suffered an “injury” or “aggravation of a preexisting condition” as
that term is defined by the Workers’ Compensation Law. This includes evidence of a
causal link between the injury or aggravation and a work-related accident. To that end,
Mr. Lindsay must produce evidence of medical causation.



2
  Mr. Lindsay took issue with the medical note’s indication he fell while jogging on June 17, arguing that
the jogging accident occurred before that date. The Court finds the importance of the opinion concerned
the finding that Mr. Lindsay’s injury stemmed from the non-work-related injury that predated the alleged
work-related incident, rather than the specific date the jogging injury occurred.

                                                    2
       To establish medical causation, Mr. Lindsay must prove “to a reasonable degree of
medical certainty that [the injury] contributed more than fifty percent (50%) in causing
the injury, aggravation or need for medical treatment, considering all causes.” A
“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.” See
Tenn. Code Ann. § 50-6-102(14)(C)-(D) (2017). Thus, causation must be established by
expert medical testimony.

       Mr. Lindsay failed to carry his burden of proving medical causation. The
authorized treating physician, Dr. Wieck, determined Mr. Lindsay’s injury occurred as a
result of his non-work-related jogging injury that predated June 18. His causation
opinion carries a presumption of correctness, and the presumption can only be overcome
by contrary expert medical proof. See id. at § 50-6-102(14)(E). Mr. Lindsay presented
no contrary expert medical proof, only lay testimony. The Court, therefore, holds Mr.
Lindsay would be unlikely to prevail at a hearing on the merits in proving medical
causation of his injury.

      It is ORDERED as follows:

   1. Mr. Lindsay’s claim for medical and temporary disability benefits is denied at this
      time.

   2. This matter is set for a status conference on Monday, November 26, 2018, at 10:00
      a.m. (CST). You must call 615-741-2113 or toll-free 855-874-0474 to
      participate in the Hearing. Failure to call may result in a determination of
      issues without your further participation.


IT IS SO ORDERED.

ENTERED ON OCTOBER 11, 2018.

                                  ________________________________________
                                  Judge Joshua Davis Baker
                                  Court of Workers’ Compensation Claims




                                            3
                                      APPENDIX

Exhibits:

   1.   Medical records
   2.   Affidavit of Courtland Lindsay
   3.   C-42 Choice of Physician Form
   4.   First Report of Injury
   5.   Notice of Claim Denial
   6.   Affidavit of Jerry Partlow

Technical Record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Expedited Hearing
   4.   Mr. Lindsay’s Statement of Additional Issues
   5.   Western Express’ Position Statement




                                            4
                             CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the foregoing was sent to the following
recipients by the following methods of service on October 11, 2018.


Name                  Certified    Via     Via      Address
                      Mail         Fax     Email

Courtland Lindsay                            X      live08feed@gmail.com
D. Andew Saulters                            X      dsaulters@ortalekelley.com



_______________________________________
Penny Shrum, Court Clerk
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
