                                                                                          FILED
                                                                                       Apr 24, 2019
                                                                                       12:33 PM(CT)
                                                                                    TENNESSEE COURT OF
                                                                                   WORKERS' COMPENSATION
                                                                                          CLAIMS




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

KEITH WRIGHT,                      ) Docket No. 2018-08-0654
         Employee,                 )
                                   )
                                   ) State File No. 97719-2015
v.                                 )
CUMMINS ENGINE COMPANY,            )
INC.,                              ) Judge Deana C. Seymour
           Employer.               )
________________________________________________________________________

           COMPENSATION HEARING ORDER DENYING BENEFITS



      This case came before the Court on March 20, 2019, for a Compensation Hearing
on Mr. Wright’s request for medical, temporary and permanent disability benefits. For the
reasons below, the Court holds Mr. Wright did not prove he sustained a compensable
work injury and denies his claim.

                                       History of Claim

       Mr. Wright worked as a CNC operator for Cummins on November 20, 2015, when
he claimed a repetitive injury to his arms and neck. He reported the injury to Cummins
and selected Dr. Lloyd Robinson from a panel of physicians for treatment. 1

      After conservative treatment, Dr. Robinson referred Mr. Wright to Dr. Christian
Fahey, an orthopedic specialist. Mr. Wright complained of bilateral elbow pain, right
worse than left, on January 25, 2016. Dr. Fahey performed a physical examination,
reviewed x-rays of the right symptomatic elbow, and concluded, “[H]e has pain without
any anatomic correspondence.” Dr. Fahey released Mr. Wright at maximum medical
improvement (MMI) with no permanent impairment.


1
 The Parties stipulated that Dr. Lloyd Robinson, Dr. Christian Fahey and Dr. Tyler Cannon provided
authorized medical treatment. They stipulated to introducing their medical records, which the Court
accepted as evidence.

                                                1
       Dissatisfied, Mr. Wright asked for another doctor, and Cummins provided a panel
of orthopedic surgeons. He chose Dr. Tyler Cannon. At his first visit, Mr. Wright
described bilateral arm pain but denied any neck pain or neurological deficits. Dr.
Cannon assessed bilateral forearm pain that “did not correlate with any significant
anatomic process.” Dr. Cannon focused on Mr. Wright’s more symptomatic right arm. He
ordered a right-elbow MRI at Mr. Wright’s insistence and continued him at full duty.
When the MRI returned normal, Dr. Cannon released Mr. Wright at MMI with no
permanent impairment on February 25. He concluded that his work did not cause or
contribute more than fifty percent to his right forearm and elbow pain. 2

       Still displeased, Mr. Wright visited his primary care physician, Dr. Laura
Lendermon. 3 She ordered a nerve conduction study and cervical MRI. The nerve
conduction results showed no cervical or bilateral extremity radiculopathy. Mr. Wright
underwent a cervical nerve block after the cervical MRI showed moderate to severe
cervical canal stenosis along with central canal stenosis.

       On October 21, Mr. Wright returned to Dr. Cannon with bilateral arm and neck
pain. Dr. Cannon reviewed the medical records Mr. Wright provided and examined him.
Dr. Cannon determined that he had no permanent impairment and concluded, “I do not
think his symptoms are correlated necessarily with work and given that he does not have
a work injury I do not think that the cause is work related.”

       Cummins terminated Mr. Wright on October 24 for violating its attendance policy.
He missed twelve days of work without providing documentation to excuse his
absenteeism.

        Ten days later, Mr. Wright saw Dr. Manuel Carro by referral from Dr. Lendermon.
Dr. Carro believed he would benefit from a block and physical therapy. Mr. Wright
testified he declined treatment because he lost insurance coverage after his termination.
Contrary to Dr. Carro’s record, Mr. Wright contended Dr. Carro suggested a cervical
fusion.

      Mr. Wright consulted neurosurgeon Dr. Thomas Windham about surgery in June
2017. Dr. Windham ordered a CT-myelogram that showed degenerative changes in Mr.
Wright’s neck. Dr. Windham did not recommend surgery but ordered cervical blocks. 4



2
    Dr. Cannon did not address the less symptomatic left-arm complaints.
3
 The parties stipulated to introducing the medical records of Dr. Laura Lendermon, Dr. Manuel Carro,
and Dr. Thomas Windham, which were attached to Dr. Samuel Chung’s deposition.
4
    Dr. Windham’s records do not show whether Mr. Wright underwent the cervical blocks.

                                                     2
       Afterward Mr. Wright scheduled an independent medical examination with Dr.
Samuel Chung, who is board-certified in physical medicine, rehabilitation, and
independent medical evaluations. Dr. Chung testified by deposition that on December 11,
2018, he evaluated Mr. Wright, who complained of neck pain radiating into his arms. He
reviewed Mr. Wright’s medical records, including unauthorized treatment records after
Drs. Fahey and Cannon released him at MMI.

        Dr. Chung diagnosed “residual from cervical injury with on going right cervical
radiculopathy.” He assigned an eleven-percent permanent impairment rating from a
repetitive work injury and suggested he avoid overhead work, work away from the body,
and repetitive activity. Dr. Chung did not address Mr. Wright’s bilateral arm and cervical
pain from a rear-end automobile accident two months before his alleged work injury. He
testified that a minor rear-end automobile accident in January 2018 did not worsen Mr.
Wright’s neck symptoms. 5

       At the hearing, Mr. Wright insisted he sustained a gradually-occurring injury to his
arms and neck arising primarily out of and in the course and scope of his employment
with Cummins. He questioned the correctness of his ATPs’ opinions and argued that
neither ATP examined his neck, which Dr. Chung concluded caused his symptoms. Mr.
Wright further relied on Dr. Chung’s testimony to show his neck injury resulted in
permanent impairment and restriction.

       Cummins countered that Mr. Wright failed to prove the compensability of his
claim by a preponderance of the evidence, considering all causes. Cummins contended
that Mr. Wright did not disclose Dr. Cannon’s complete record or medical records of
treatment for a rear-end automobile accident two months before he claimed this work
injury. It also pointed out pre-existing neck and arm complaints of which Dr. Chung had
no knowledge and inconsistencies in Dr. Chung’s testimony, contending his opinions did
not rebut the ATPs’ opinions by a preponderance of the evidence.

       Cummins introduced documentation of a lawsuit where Mr. Wright claimed
disabling and permanent injuries to his back, neck, and other body parts from the prior
automobile accident. It further relied on medical and chiropractic records predating the
work injury, including Mr. Wright’s complaints of neck and bilateral arm pain.

       Cummins also argued that Dr. Chung listed the previous automobile accident date
rather than the work injury date on his IME report. Dr. Chung testified that he did not
review medical records from, nor did Mr. Wright tell him about, that accident. Dr. Chung
agreed the conditions Mr. Wright alleged after the automobile accident were the same
conditions Dr. Chung evaluated. Dr. Chung testified that the automobile accident could

5
 The Parties stipulated to medical records from We Care Chiropractic and NP Family Health & Wellness
Clinic for treatment related to his automobile accidents, which the Court accepted as evidence.

                                                 3
cause or worsen his neck symptoms. He further agreed that Mr. Wright’s symptoms after
the January 2018 automobile accident resulted in a CT scan and other diagnostic tests of
Mr. Wright’s neck.

       Finally, Cummins disputed the basis of Dr. Chung’s impairment rating. Although
Dr. Chung based the eleven-percent impairment rating on verifiable cervical
radiculopathy, two EMG/nerve conduction studies and a CT myelogram failed to reveal
cervical radiculopathy.

                       Findings of Fact and Conclusions of Law

       At a Compensation Hearing, the employee must establish by a preponderance of
the evidence that he is entitled to the requested benefits. Willis v. All Staff, 2015 TN Wrk.
Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-
239(c)(6) (2018). The employee must establish that his injury or condition “arose
primarily out of and in the course and scope of employment.” Tenn. Code Ann. § 50-6-
102(14)(A).

       Mr. Wright’s burden requires proof “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(14)(B). He must establish this evidence “to a
reasonable degree of medical certainty.” Tenn. Code Ann. §50-6-102(14)(C). “The
opinion of the treating physician, selected by the employee from the employer’s
designated panel of physicians . . . shall be presumed correct on the issue of causation but
this presumption shall be rebuttable by a preponderance of the evidence.” Tenn. Code
Ann. § 50-6-102(14)(E).

       Here, Dr. Cannon reasoned that Mr. Wright’s work with Cummins did not
contribute more than fifty percent in causing the injury, considering all causes. Both Drs.
Fahey and Cannon assigned no permanent impairment. As authorized treating physicians
their opinions are presumed accurate. Tenn. Code Ann. § 50-6-204(k)(7).

        To rebut the treating physicians’ opinions, Mr. Wright offered the testimony of Dr.
Chung. The Court notes Dr. Chung’s IME occurred three years after Mr. Wright reported
pain in his arms to Cummins. Dr. Chung had no records from his prior automobile
accident, earlier neck and arm complaints, or complete records from ATP Cannon until
his deposition. Dr. Chung did not know about the automobile accident Mr. Wright had
two months before he notified Cummins of his gradually-occurring work claim. When
provided the information at his deposition, Dr. Chung agreed the conditions Mr. Wright
alleged after the automobile accident were the same conditions he evaluated. Dr. Chung
testified that the automobile accident could have caused or worsened his neck symptoms.
For these reasons, the Court holds Dr. Chung’s opinion failed to prove Mr. Wright


                                             4
sustained a compensable work injury and to rebut the presumption afforded to Mr.
Wright’s ATP by a preponderance of the evidence.

       Accordingly, the Court holds that Mr. Wright failed to establish by a
preponderance of the evidence that he suffered a compensable work injury on November
20, 2015. Therefore, it denies Mr. Wright’s claim for benefits.

 IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Wright’s claim against Cummins and its workers’ compensation carrier is
      dismissed with prejudice against its refiling.

   2. Costs of $150.00 are assessed against Cummins under Tennessee Compilation
      Rules and Regulations 0800-02-21-.07 (2018), to be paid to the Court Clerk within
      five days of this order becoming final.

   3. Cummins shall prepare and file a statistical data form (SD2) with the Court Clerk
      within ten business days of the date of this order under Tennessee Code Annotated
      section 50-6-244.

   4. Absent an appeal, this Order shall become final in thirty days.

ENTERED on April 24, 2019.



                                  _____________________________________
                                  Judge Deana C. Seymour
                                  Court of Workers’ Compensation Claims


                                      APPENDIX

Exhibits:
      1.    Dr. Chung’s deposition
      2.    Dr. Christian Fahey (by medical record)
      3.    Dr. Tyler Cannon (by medical record)
      4.    We Care Chiropractic/Dr. Renwick Tucker (by medical record)
      5.    NP Family Health & Wellness Clinic (by medical record)
      6.    September 30, 2016 Complaint for Damages
      7.    October 14, 2016 Separation Notice
      8.    Employee Attendance Policy effective August 1, 2016
      9.    September 8, 2016 Notice of Verbal Warning

                                            5
      10. September 29, 2016 Notice of Final Reprimand
      11. October 31, 2016 Grievance Form
      12. November 23, 2015 Choice of Physician Form - Dr. Lloyd Robinson
      13. February 10, 2016 Choice of Physician Form – Dr. Tyler Cannon
      14. Wage Statement
      15. First Report of Injury

Technical Record:
      1.    Petition for Benefit Determination
      2.    Dispute Certification Notice
      3.    Request for Scheduling Hearing
      4.    Scheduling Order
      5.    Amended Scheduling Order
      6.    Medical Record of Authorized Treating Physician, Dr. Christian Fahey
      7.    Medical Records of We Care Chiropractic and Dr. Renwick Tucker
      8.    Medical Record of Authorized Treating Physician, Dr. Tyler Cannon
      9.    Medical Record of NP Family Health & Wellness Clinic
      10. Employee’s Witness and Exhibit List
      11. Notice of Filing Deposition Transcript of Dr. Samuel Chung
      12. Dr. Chung’s deposition
      13. Stipulated Witnesses, Exhibits and Medical Records
      14. Pre-Compensation Hearing Statement


Stipulated Findings of Fact:
       1.     Employee’s alleged date of injury is November 20, 2015.
       2.     Employee gave notice of the alleged injury to Employer on November 20,
              2015.
       3.     Employee is 36 years of age and a resident of Shelby County.
       4.     Employee has completed the 12th grade and has obtained a high school
              diploma or GED.
       5.     Employee received authorized medical treatment for the injury with the
              following medical providers: Employee chose Dr. Lloyd Robinson at
              Occumed from the initial panel provided by Employer, who then referred
              him directly to orthopedic surgeon, Dr. Christian Fahey at Memphis
              Orthopedic Group. Employer then provided another panel of physicians
              from which Employee chose Dr. Tyler Cannon with Tabor Orthopedic for a
              second opinion and further assessment and care. Medical expenses were
              paid by the Employer or its workers’ compensation insurance
              carrier/administrator in the amount of $4,940.93.
       6.     Employee reached the maximum level of medical improvement that the
              nature of the injury permits on January 25, 2016 by Dr. Fahey and February
              25, 2016 by Dr. Cannon.

                                           6
      7.     Employee returned to work for the Employer, earning the same or greater
             wages as the Employee was earning prior to the injury but was
             subsequently terminated for violation of company policies. The Parties do
             not stipulate as to whether Employee qualifies for any enhanced benefits.
      8.     Employee’s average weekly wage is $1,248.22, which entitles Employee to
             a weekly compensation rate of $832.15.


                               CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of this Compensation Order was sent
to the following recipients by the following methods of service on April 24, 2019.

 Name                                Via Email      Service sent to:
 Christopher Taylor, Esq.,               X          ctaylor@taylortoon.com
 Employee’s Attorney
 Kevin Washburn, Esq.,                   X          kwashburn@allensummers.com
 Employer’s Attorney



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




                                             7
                                 II
                                  I                                                       'I



                          Compensation Hearing Order Right to Appeal:

     If you disagree with this Compensation Hearing Order, you may appeal to the Workers'
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers'
Compensation Appeals Board, you must:

    1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal," and file
       the form with the Clerk of the Court of Workers' Compensation Claims within thirty
       calendar days of the date the compensation hearing order was filed. When filing the
       Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
       represented).

   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 ofthe filing 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 lndigency will
      result in dismissal of your 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. A licensed court
        reporter must prepare a transcript and file it with the court clerk within fifteen calendar
        days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
        evidence prepared jointly by both parties within fifteen calendar 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
        of the evidence 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. After the Workers' Compensation Judge approves the record and the court clerk transmits
      it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
      party has fifteen calendar days after the date of that notice to submit a brief to the
      Appeals Board. See the Practices and Procedures of the Workers' Compensation
      Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
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, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
II                                                                                                                      I.
 '                                                                                                                       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:     ! ~                                                      li
                                                                                  I
                          '

        Rent/House Payment $              per month     Med icai/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
