                                                                                      FILED
                                                                                  December 15, 2017

                                                                                   TN COURT OF
                                                                               WORKERS' COAIPENSi\TION
                                                                                      CL . IDIS
                                                                                           .

                                                                                      Tim.e I :31 PM



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

DAVID MOFFITT,                               )    Docket Number: 2016-02-0282
         Employee,                           )
                                             )
v.                                           )
                                             )
ALLIED METALS COMPANY,                       )    State File Number: 40249-2016
         Employer,                           )
                                             )
and                                          )
                                             )
FFVA MUTUAL INSURANCE CO.,                    )   Judge Brian K. Addington
         Insurance Carrier.                   )


                        COMPENSATION HEARING ORDER


       This matter came before the Court on December 4, 2017, for a Compensation
Hearing. The parties stipulated that Mr. Moffitt suffered a compensable lumbar injury on
March 26, 2015. The central legal issue is the compensability of Mr. Moffitt's claim for
a cervical injury on the same date. The Court finds Mr. Moffitt failed to prove the
causation of his cervical injury. Therefore, the Court holds that Mr. Moffitt suffered a
compensable lumbar injury for which he is entitled to permanent partial disability
benefits, but he did not suffer a compensable cervical injury.

                                     History of Claim

        Mr. Moffitt worked as a welder at Allied Metals. On March 26, 2015, he stood on
a table to help two co-workers bend metal. Once the process was over, he twisted and
jumped to the ground. He testified he immediately felt pain in his right arm and low
back. He told co-worker Roger Hensley that he hurt his back when he jumped off the
table. Mr. Moffitt then told supervisor Bruce Hall that he injured his back and the pain
travelled into his leg. Mr. Moffitt did not request medical treatment but finished his shift


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and went home. Mr. Hensley and Mr. Hall disputed Mr. Moffitt's testimony that he
complained of arm pain.

       The next morning Mr. Moffitt's wife called Mr. Hall and requested medical
treatment for Mr. Moffitt. Allied's secretary directed Mr. Moffitt to pursue medical
treatment at Medworks. Mr. Moffitt testified that he complained of hand pain during the
examination that day, but the records reflect no mention of same. The records also
reflected no treatment for neck or arm pain. Dr. Michael Anders focused treatment on his
low back and diagnosed an acute low-back strain.

       Dr. Anders provided the following work restrictions: no lifting, pushing, or pulling
over five pounds; no lifting, pushing, or pulling with either arm over five pounds; no
work with the arms above shoulder level; no work with repetitive or prolonged forward
bending or twisting; no work with repetitive or prolonged kneeling, squatting, or
climbing; work must allow alternate sitting and standing; and an eight-hour a day work
limit.

        Mr. Moffitt provided these restrictions to Allied and signed a form stating that he
initially refused medical treatment. Supervisor Hall informed Mr. Moffitt that Allied
would accommodate his restrictions and for him to request help if he needed it.

       Mr. Moffitt returned to work on March 30 and continued to work eight-hour shifts.
Dr. Anders continued to reflect Mr. Moffitt's low-back pain, so Dr. Anders ordered a
lumbar MRI. After continued complaints, Dr. Anders referred Mr. Moffitt to a spine
specialist.

       Mr. Moffitt chose Dr. Richard Duncan from a panel of physicians. Dr. Duncan
treated Mr. Moffitt only for low-back pain, and his records do not reference any arm pain
at that time. Later, Dr. Duncan diagnosed spinal stenosis and placed Mr. Moffitt at
maximum medical improvement on June 17, 2015. He assigned Mr. Moffitt a three-
percent whole body impairment and continued his work restrictions.

       Mr. Moffitt's back pain worsened when he started working additional hours in
June 2015. He went to Dr. Duncan's walk-in clinic on June 29, 2015, and requested
something for relief of his low-back pain. He also reported occasional right-arm pain.
Dr. Duncan noted the right-arm pain was not work-related but recommended physical
therapy. Allied did not approve the physical therapy.

       Mr. Moffitt came to work on July 22, b~t his supervisor noticed he was in obvious
pain, which appeared to prevent him from performing his light duty work. Mr. Hall told
Mr. Moffitt to go home, take care of himself and to return to work when he was able.



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       Based on personal recommendations, Mr. Moffitt sought treatment from Dr.
Morgan Lorio, who first saw Mr. Moffitt on July 24. Dr. Lorio's notes indicate that Mr.
Moffitt injured his back and then "his neck started to bother him." He ordered an MRI,
which indicated disc herniations at C4-5 and 6-7. Dr. Lorio fused both levels and
continued treating Mr. Moffit until January 9, 2017. 1 Dr. Lorio later moved away.

      During his cervical treatment by Dr. Lorio, Mr. Moffitt sought additional lumbar
treatment because he was unsatisfied with Dr. Duncan's opinion. Allied sent Mr. Moffitt
to Dr. Jim Brasfield on October 12, 2015, for a second opinion for his low back
complaints. Dr. Brasfield ordered a nuclear bone scan, which was normal. However, he
determined Mr. Moffitt would benefit from a facet injection, which eased the pain for a
few days. Dr. Brasfield last saw Mr. Moffitt on March 28, 2016, and recommended a
back brace and radiofrequency lesioning.

       Mr. Moffitt's average weekly wage was $709.85, which provided· a $473.26
compensation rate. Mr. Moffitt has not worked for any employer since July 22, 2015.
Allied terminated Mr. Moffitt in November 2015 for absenteeism.

                                     Deposition Testimony

       Dr. Duncan testified that Mr. Moffitt originally complained of leg and lumbar
pain. He placed Mr. Moffitt at maximum medical improvement on June 17, 2015, and
assigned him three percent whole-body impairment. Later Mr. Moffitt came to Dr.
Duncan's walk-in clinic with continued low-back pain and new right arm pain. Dr.
Duncan determined Mr. Moffitt suffered a non-work-related cervical spondylosis without
myelopathy. He recommended physical therapy for the cervical issues. Dr. Duncan
indicated he had not thoroughly reviewed Dr. Brasfield's notes or Dr. Lorio's records
prior to his deposition. Additionally, the ones presented to him during the deposition
were not complete. Based on his review of Dr. Lorio's notes during the deposition, Dr.
Duncan could not causally relate Mr. Moffitt's cervical fusion to the work incident. Dr.
Duncan thought Mr. Moffitt's cervical injury occurred without a specific injury.

       Dr. Lorio assumed that Mr. Moffitt complained of right arm pain on the date he
injured his low back. He performed a double-level cervical fusion and assigned Mr.
Moffitt fifteen percent whole body impairment. He stated an MRI could indicate an
acute injury, "Up to four months, maybe a little bit longer." During the deposition, he did
not have all of his notes and the ones he had were incomplete, so parts of his testimony
were from his recollection. He testified that someone with a herniated disc would feel
pain within a couple of days. He related Mr. Moffitt's need for fusion surgery to the


1
  Prior to his surgery by Dr. Lorio, Mr. Moffitt sought treatment at Bristol Regional Medical Center
(BRMC) on August 22, 2015, for severe neck pain and right-sided numbness.

                                                 3
workplace accident. He felt restrictions Dr. Anders placed on Mr. Moffitt were in part
due to a cervical injury.

       Dr. Brasfield acknowledged Allied only authorized him to treat Mr. Moffitt's
lumbar complaints. He testified that a cervical disc herniation is very painful and patients
often feel pain immediately or within two days. He noted that according to the medical
records he had seen, Mr. Moffitt did not complain of arm pain until three months after the
March 26 incident.

                                              Argument

       Mr. Moffitt argued that he complained of both arm and back pain on the date of
injury. He contended the work restrictions in Dr. Anders' notes correspond to both
lumbar and cervical issues. He asserted Dr. Duncan could not understand the issue and
that Dr. Brasfield was not authorized to treat his cervical pain. He argued Dr. Lorio
considered all the information available and that he is the only expert to render a
thorough decision on the causation of his cervical complaints. As such, in addition to the
permanent partial disability benefits for his three percent lumbar injury, he requested
permanent partial disability of fifteen per ent to his whole body for his cervical injury.
                                                                    2
He also sought payment of past medical treatment with Dr. Lorio. Additionally, Mr.
Moftltt reque ·ted mil eage reimbursement, discretionary costs and temporary disability
benefits from his last day of work until January 7, 2017. 3

       Allied argued that Mr. Moffitt injured only his lumbar spine in March 2015. It
pointed to the lack of any reference to arm or neck pain in MedWorks' and Dr. Duncan's
notes for three months following the accident. Allied claimed that Dr. Duncan, as the
authorized treating physician, is presumed correct about causation and that Dr. Lorio's
opinion is not sufficient to overcome the presumption. Allied acknowledged that Mr.
Moffitt is entitled to permanent partial disability for his lumbar injury but requested the
Court deny benefits for his cervical complaints.

                            Findings of Fact and Conclusions of Law
       Mr. Moffitt bears the burden of proof on all essential elements of his claim and
must establish by a preponderance of the evidence that he is entitled to the requested
benefits. Willis v. All Staff, 2015 TN Wrk. Camp. App. Bd. LEXIS 42, at *18 (Nov. 9,
2015); see also Tenn. Code Ann. § 50-6-239(c)(6) (2017) ("[T]he employee shall bear
the burden of proving each and every element of the claim by a preponderance of the
evidence.").



2
    Mr. Moffitt did not submit any med ical bills fro m Dr. Lorio.
3
    Mr. Moffitt did not submit mileage reimbursement documentation.
                                                    4
       Prior to discussing the facts of the case, the Court notes that all the fact witnesses
appeared credible. The physicians were equally qualified to render expert medical
testimony. However, after a thorough review of the depositions, it is clear that Drs.
Duncan, Lorio and Brasfield either did not have or thoroughly review the other
physicians' notes before their deposition. 4 Thus, the attorneys asked the physicians to
give opinions without providing them a complete picture of facts. As such, their opinions
concerning each other's care or that of Dr. Anders is unpersuasive. In the end, Dr.
Duncan's opinion is presumed correct on causation and Dr. Lorio's opinion failed to
rebut Dr. Duncan's opinion by the preponderance of the evidence. See Tenn. Code Ann.
§ 50-6-102 (14)(E) (2015).

       Although Mr. Moffitt believes he told his co-workers as well as Drs. Anders and
Duncan early in his treatment that his arm was hurting, the facts do not bear that out. His
co-workers denied he mentioned it, and neither Dr. Anders' notes nor Dr. Duncan's early
notes mention arm pain. Mr. Moffitt spent a significant amount of time trying to assert
Dr. Anders' restrictions were at least in part cervical in nature, but he failed to present
any testimony from Dr. Anders to support his theory. Rather, the proof indicated that Mr.
Moffitt first complained of arm pain in the June 2015 walk-in appointment with Dr.
Duncan, some three months after his injury. Dr. Duncan determined Mr. Moffitt's arm
pain was not work-related.

       Dr. Lorio related Mr. Moffitt's arm pain to the work incident, but the Court is not
persuaded by his opinion. His first note indicated Mr. Moffitt began to have neck pain
after the back pain. Dr. Lorio testified that a person that suffered an injury like Mr.
Moffitt had would feel pain within a few days. Mr. Moffitt, however, worked for three
months until he .reported arm pain to Dr. Duncan.

       Dr. Brasfield agreed with Dr. Lorio that Mr. Moffitt would have felt arm pain
from his cervical injury soon after the incident occurred. Based on the records he
reviewed, Dr. Brasfield did not believe Mr. Moffitt injured his cervical spine when he
injured his low-back.

       Mr. Moffitt asserted that pain from his lumbar injury masked the pain from his
cervical until later. But in his case, he began feeling the pain three months later, when
the experts stated the pain would have occurred almost immediately.

       The Court must use its discretion in accepting one expert opinion over another
when faced with conflicting medical testimony and may consider whichever opinion
contains the more probable explanation. Sanker v. Nacarato Trucks, Inc., 2016 TN Wrk.
Comp. App. Bd. LEXIS 27, at *12 (July 6, 2016). Dr. Duncan's and Brasfield's

4
  Dr. Duncan's records were hard to follow by date, and Dr. Lorio's records lacked all information
contained in the originals.

                                                5
testimony is more plausible. Taken as a whole, Dr. Lorio's causation opinion does not
overcome the presumption given to Dr. Duncan.

        Thus, the Court holds Mr. Moffitt is entitled to temporary total disability benefits
for his lumbar injury in the amount of thirteen and a half weeks or $6,3 89.0 1. Allied
previously advanced $4056.52, leaving a remaining balance of $2,332.49. Mr. Moffitt's
initial period of benefits began on June 18, 2015, and ended thirteen and a half weeks
later on September 21, 20 15. On that date, he was still recovering from his cervical
fusion surgery. Mr. Moffitt is not entitled to increased benefits because his non-work-
related cervical injury caused his absences and subsequent termination from work. Allied
provided Mr. Moffitt light-duty work until he was forced to seek treatment for his
cervical injury.

                                  Alternative Findings of Fact

      Solely in the event that an appellate body finds error in the compensability holding
and concludes Mr. Moffitt is entitled to benefits related to his cervical injury, the Court
makes the following findings of fact for the purpose of judicial economy. 5

        Mr. Moffitt is entitled to temporary partial disability benefits from June 24, 2015,
until January 9, 2017, which represents seventy-nine weeks and five days in the amount
of $37,725.59. Mr. Moffitt is entitled to an additional award for permanent partial
disability for his cervical injury in the amount of sixty-seven weeks of benefits (fifteen
percent whole body impairment) or $31,708.42. Mr. Moffitt is entitled to future medical
treatment for his cervical injury. Because Dr. Lorio moved from the area, Allied shall
provide Mr. Moffitt a panel of physicians from which he shall choose an authorized
physician. Mr. Moffitt is not entitled to payment of medical bills or mileage for
treatment with Dr. Lorio because he did not make them an exhibit for the Court to
consider.

    IT IS, THEREFORE, ORDERED as follows:

     1. Allied shall continue to provide Mr. Moffitt with medical treatment made
        reasonably necessary by the March 29, 2015 injury under Tennessee Code
        Annotated section 50-6-204(a)(l).  Dr. Richard Duncan is designated the
        authorized treating physician.




5
  See Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 137-138 (Tenn. 2001). (Trial courts should "hear
the entire case and make appropriate findings of fact, and alternative findings when necessary, for
appellate review.")


                                                   6
      2. Allied shall pay Mr. Moffitt permanent partial disability benefits for a three-
         percent impairment rating to the body as a whole in the amount of $6,389.01.
         Allied is given a credit of $4,056.52, leaving a remaining balance of $2,332.49.
         Mr. Moffitt is not entitled to an increased award of permanent benefits.


      3. Mr. Roberts, Mr. Moffitt's attorney, is entitled to an attorney fee of twenty percent
         of Mr. Moffitt's total award, or $1,277.80, plus expenses, to be paid from Mr.
         Moffitt's award.

     4. Costs of $150.00 are assessed against Allied under Tennessee Compilation Rules
        and Regulations 0800-02-21-.07 (20 16), to be paid within five days of this Order
        becoming final.

      5. Allied shall prepare and file a statistical data form within ten business days of the
         date of this Order under Tennessee Code Annotated section 50-6-244.

      6. Absent an appeal of this order by either party, the order shall become final thirty
         days after issuance.

         It is so ORDERED.

         ENTERED this the 15th day of December, 2017.



                                            Is/ Brian K. Addington
                                            BRIAN K. ADDINGTON, JUDGE
                                            Court of Workers' Compensation Claims



Exhibits

1.   Deposition of Dr. Richard Duncan and Collective Exhibits
2.   Deposition of Dr. Morgan Lorio and Collective Exhibits
3.   Deposition of Dr. Jim Brasfield and Collective Exhibits
4.   Mr. Moffitt's 2015 attendance record
5.   Worker's Compensation Medical Treatment Refusal Form
6.   March 27, 2015 absence report




                                               7
Technical Record

1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Allied's Response to Expedited Hearing
5. Motion for Partial Summary Judgment
6. Statement of Undisputed Facts in Support of Partial Summary Judgment
7. Motion for Extension of Time
8. Agreed Order to Continue Hearing
9. Mr. Moffitt's Response to ER's Statement of Facts
10. Mr. Moffitt's Concise Statement of Additional Material Facts
11. Mr. Moffitt's Response to Motion for Summary Judgment
12. Allied's Reply to Mr. Moffitt's Response to Motion for Summary Judgment
13. Allied's Response to Concise Statement of Additional Material Facts
14. Order Denying Allied's Motion for Partial Summary Judgment
15. Post Discovery Dispute Certification Notice
16. Request for Scheduling Hearing
17. Scheduling Hearing Order
18. Allied's Motion for Extension of Time
19. Order Granting Motion for Extension of Time
20. Mr. Moffitt's Pre-Hearing Statement
21. Mr. Moffitt's Witness and Exhibit List
22. Notice of Filing Deposition of Dr. Lorio and Dr. Brasfield
23. Notice of Filing of Deposition of Mr. Moffitt
24. Motion In Limine-Dr. Lorio
25. Motion In Limine-Dr. Duncan
26. Allied's Witness and Exhibit List
27. Medical Records Submitted by Allied
28. Allied's Pre-Hearing Brief (Incl. Exhibits and Case Law)
29. Notice of Filing of Deposition of Dr. Brasfield
30. Allied's Supplement to Pre-Hearing Brief
31. Mr. Moffitt's Response to Motion in Limine-Dr. Lorio
32. Mr. Moffitt's Response to Motion in Limine-Dr. Duncan




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                               CERTIFICATE OF SERVICE


       I hereby certify that a true and correct copy of the Compen ation Hearing Order
was sent to the following recipients by the following methods of servic on thi the 15th
day of December, 2017.

 Name                      Certified   Fax        Via Service sent to:
                            Mail                 Email
 Larry V. Roberts, Esq.,                               Iarry .ro he rtsroiJ (lrryv robcrts. com
 Employee's Attorney                               X   !'i tlsan .cll ioll(a·larrvvrobcrts.com

 Brent Laman, Esq.,
 Employer's attorney                               X      brlaman@.mijs.com




                                                  RUM, COURT CLERK
                                        Court of orkers' Compensation Claims
                                        WC.CourtClerk@tn.gov




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