                                                                                               FILED
                                                                                            October 9, 2014
                                                                                            T:-1 CO URT OF
                                                                                        WORKERS' C 0:\1PE:"'SATIO:o;
                                                                                                C LAn1S

                                                                                               Time: 1:33PM



                    COURT OF WORKERS' COMPENSATION CLAIMS
                      DIVISION OF WORKERS' COMPENSATION


EMPLOYEE: Robert Poindexter                             DOCKET#: 2014-08-0012
                                                        STATE FILE#: 67112/2014
EMPLOYER: Estes Express Lines                           DATE OF INJURY: August 20,2014

INSURANCE CARRIER/TPA: New Hampshire Insurance Co./Gallagher Bassett

                               EXPEDITED HEARING ORDER

       THIS CAUSE came before the undersigned Workers' Compensation Judge upon the Request
for Expedited Hearing filed by Robert Poindexter (Employee).

        On September 23, 2014, a Request for Expedited Hearing was filed with the Tennessee Court
of Workers' Compensation Claims, Division of Workers' Compensation, on behalf of Employee
pursuant to Tennessee Code Annotated section 50-6-239 to determine ifthe provision of medical
benefits and/or temporary disability benefits is appropriate. Employee requested an evidentiary
hearing.

        The Court conducted a telephonic hearing on October 8, 2014. Employee appeared prose.
Estes Express Lines and New Hampshire Insurance Co. (Employer/Carrier) were represented by
attorney Eugene Forrester. Considering the positions of the parties, the applicable law and all of the
evidence submitted, the Court hereby finds that Employee is not entitled to medical benefits or
temporary disability benefits.

                                            ANALYSIS

                                               Issues

   1. Whether Employee sustained an injury that arose primarily out of and in the course and
      scope of employment with Employer.

   2.   Whether Employer is obligated to provide medical benefits and/or temporary disability
        benefits.
                                        Evidence Submitted

        The Court received and considered the following documentation and information submitted
by the parties, which was admitted into evidence without objection (Note: Ex. 13 marked for
identification only):

                Exhibit No./Evidence

                    1.  Request for Expedited Hearing, filed September 23,2014
                    2.  Dispute Certification Notice, dated September 22, 2014
                    3.  Petition for Benefit Determination, filed September 9, 2014
                    4.  Denial letter from adjuster (Gina Ball), dated September 3, 2014
                    5.  Notice ofDenial of Claim (Form C-23) dated September 3, 2014
                    6.  Work Status/Restrictions Forms from Nova Medical Centers (Kallol Saha,
                        M.D.) dated August 20, 21, 27 and September 5, 12, 2014
                    7. Panel of physicians, Gregory Wolf, M.D., at Tabor Orthopedics selected on
                        August 26, 2014
                    8. Medical records, Dr. Wolf, dated August 26, 2014
                    9. Medical records, Dr. Saha, initial evaluation dated August 20, 2014
                    10. Medical records, Dr. Saha, follow-up evaluation dated August 21,2014
                    11. Wage records ofEmployee showing Average Weekly Wage of$1,550.68 and
                        email from adjuster dated September 10, 2014, stating that Employee is at the
                        maximum TTD comp rate of $932.00.
                    12. Email from Employee to adjuster dated September 19, 2014, with explanation
                        of circumstances of alleged injury
                    13. Email from adjuster dated September 19, 2014, explaining
                        Employer/Carrier's reasons for denial of claim.


                                          History of Claim

        Employee works as a long haul truck driver for Employer (Ex. 3). He reported that on
August 20, 2014, while working in the State of Illinois, he sustained a hip and back injury (Ex. 3).
His description of the injury was "I was stepping down out of my work vehicle when a heavy pain
occurred down in my back and hip area that traveled down into my leg" (Ex. 3). Employee testified
that regulations applicable to his truck driving job require him to stop for meals, and that his injury
occurred when he stopped for a lunch break.

       Regarding his injury, Employee testified as follows:

       What happened with the injury was I was fine when I left Memphis [TN], I was fine
       when I reached Elgin [IL], it was not until I went on my lunch break ... and I stepped
       down out of my truck and I started hurting and I didn't know what it was and ... as I
       was walking it got worse. When I got back to the truck ... the pain was unbearable,
       and I suffered until I got back to Memphis because I did not know what the injury

                                                  2
        was. The only thing I know is that I was hurting real bad. Once I got back to the
        terminal they had to help me out of the truck because I couldn't move because of my
        InJUry.

        Employee further testified that he immediately went to a company doctor, Kallo Soha, M.D.
at Nova Medical Center, as directed by his Employer. According to the "Initial Evaluation" at Nova
Medical Center on August 20, 2014, "patient states he was getting out of truck and felt pain in lower
back and [it] radiates to left hip." It was further reported "patient states he started feeling pain this
early morning but severe pain occurred [when] he was getting out ofhis truck." The diagnosis was
listed as "(I) bilateral sprain of lumbar [spine], and (2) left enthesopathy of hip." [Note:
Enthesopathy is an inflammatory condition, not typically associated with traumatic injuries.]
Physical therapy and medication was recommended. It was also recommended that Employee
consult with an orthopedist for his left hip pain (Ex. 9). Employee returned to Nova Medical Center
on August 21, 2014, complaining that he got no relief from medication. He was prescribed stronger
pain medication and again advised to see an orthopedist (Ex. 10).

        The adjuster for Employer/Carrier provided a panel of orthopedists to Employee, and on
August 26, 2014, Employee selected Gregory Wolf, M.D., at Tabor Orthopedics. On that same date,
Employee saw Dr. Wolf and complained of left hip pain. X-rays of the left hip showed "some
heterotopic bone in the anterior aspect ofhis hip consistent with an old proximal quadriceps tendon
avulsion. This is a remote injury and is not acute." Dr. Wolfs impression was "probable lumbar
radiculopathy." Employee was instructed to return to sedentary work and return in one week to
assess his progress (Ex. 8).

        On September 3, 2014, the adjuster for Employer/Carrier filed a "Notice of Denial" (Ex. 5)
stating the basis for denial:

        Employee admits he was logged out, voluntarily elected to stop at truck stop for
        break. No injury by accident noted. Employee denies any defect with truck, steps
        and/or slippery liquids. Employee stepped and had pain, no injury by accident. Dr.
        Wolf has opined hip is not an acute injury.

       Employee testified that he continued treatment at Nova Medical Center after seeing Dr. Wolf.
 He furnished Work Status/Restriction Forms (Ex. 6) which showed that Employee was advised he
could work with restrictions from August 20, 2014, to September 12, 2014. No evidence was
provided by the parties regarding whether restricted duty work was available.

        At the telephone hearing, Employee offered no proof of the medical benefits he was
requesting. He did testify that he would like to be reimbursed for his lost wages. Employee testified
that he was unable to work from the date of injury (August 20, 2014 ), until released to return to work
by Nova Medical Center, which he said was on September 23, 2014. The parties stipulated that
Employee's average weekly wage was $1,550.68 and that he was at the maximum weekly
compensation rate of $932.00.




                                                   3
                                      Employee's Contentions

        Employee contends that he sustained an injury that arose primarily out of and in the course
and scope of employment with Employer when he stepped out of his truck on August 20, 2014.
Employee contends that Employer/Carrier should provide temporary disability benefits and medical
benefits.

                                      Employer's Contentions

        Employer/Carrier disputes the compensability of Employee's injury on the basis that the
injury did not arise primarily out of and in the course and scope of employment with Employer.
Employer contends that Employee was on a lunch break when his alleged injury occurred, which was
not in the course and scope of employment. Employer also contends that Employee has failed to
describe any work accident which caused an injury. Further, Employer argues that Dr. Wolf noted in
his report that Employee's hip condition was not the result of an acute injury.

                            Findings of Fact and Conclusions of Law

                                              Standard Applied

         When determining whether to award benefits, the Judge must decide whether the moving
party is likely to succeed on the merits at trial given the information available. See generally, McCall
v. Nat'! Health Care Corp., 100 S.W. 3d 209,214 (Tenn. 2003) and Tenn. Code Ann. sec. 50-6-238
(20 12). The employee bears the "burden of proving each and every element of the claim by a
preponderance of the evidence." Tenn. Code Ann.§ 50-6-239(c)(6) (2014).

                                              Factual Findings

        Considering all admissible evidence, including the testimony of Employee, the Court finds
that on August 20, 2014, Employee was driving a truck in Illinois as an employee of Employer.
Employee testified that he was feeling fine until he stopped for a lunch break, and as he stepped
down out ofhis truck he started hurting but "did not know what it was." No specific accident was
described by Employee. When Employee returned to Memphis, he was directed by his Employer to
go to Nova Medical Center. Employee went directly to Nova Medical Center on the same day as the
alleged injury, and reported a slightly different version of how his injury occurred. At Nova,
Employee reported that he had started feeling his pain earlier but that it became severe when he was
getting out of his truck. The diagnosis at Nova was bilateral sprain of lumbar [spine], and (2) left
enthesopathy of hip. Employee was given a panel of physicians and selected Dr. Wolf. Dr. Wolf
diagnosed lumbar radiculopathy, and opined that Employee's hip condition was not the result of an
acute injury. No physician has opined that Employee's alleged injury arose primarily out of and in
the course and scope of employment with Employer.




                                                   4
                                         Application of Law to Facts

        I.      Employee failed to prove that he sustained an injury that arose primarily out of
             and in the course and scope of employment with Employer.

        To be compensable under the workers' compensation statutes, an injury must arise primarily
out of and occur in the course and scope of the employment. Tenn. Code Ann. § 50-6-102(13)
(20 14). An injury means "an injury by accident ... arising primarily out of and in the course and
scope of employment, that causes death, disablement or the need for medical treatment of the
employee." !d. For an injury to be accidental, it must be "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, and shall not include the aggravation of a preexisting disease,
condition or ailment unless it can be shown to a reasonable degree of medical certainty that the
aggravation arose primarily out of and in the course and scope of employment." Tenn. Code Ann. §
50-6-102(13)(A) (2014).

         An injury is deemed to arise primarily out of and in the course and scope of employment
"only if it has been shown 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(13)(B) (20 14). Further,"[ a]n injury causes death, disablement or the need for medical treatment
only if it has been shown to a reasonable degree of medical certainty that it 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(13)(C) (2014). An injury is shown to a reasonable degree of
medical certainty if"in the opinion of the physician, it is more likely than not considering all causes,
as opposed to speculation or possibility." Tenn. Code Ann. § 50-6-1 02( 13 )(D) (20 14). "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(13)(E) (2014). The
employee b e a r s the "burden of proving each and every element of the claim by a
preponderance of the evidence." Tenn. Code Ann.§ 50-6-239(c)(6) (2014).

        Traditionally, courts have held that the statutory requirements that an injury arise out of and
in the course of the employment are not synonymous "although both elements exist to ensure a work
connection to the injury for which the employee seeks benefits." Blankenship v. Am. Ordnance Sys.,
164 S.W.3d 350, 354 (Tenn. 2005). An injury occurs in the course of employment if it takes place
while the employee was performing a duty he or she was employed to perform. Finkv. Caudle, 856
S.W.2d 952,958 (Tenn. Workers' Comp. Panel1993). Thus, thecourseofemploymentrequirement
focuses on the time, place, and circumstances ofthe injury. Saylor v. Lakeway Trucking, Inc., 181
S.W.3d 314,318 (Tenn. 2005).

         In contrast, arising out of employment refers to causation. Reeser v. Yellow Freight Sys.,
Inc., 93 8 S. W.2d 690, 692 (Tenn. 1997). An injury arises out of employment when there is a causal
connection between the conditions under which the work is required to be performed and the
resulting injury. Fritts v. Safety Nat'! Cas. Corp., 163 S.W.3d 673,678 (Tenn. 2005). Put another
way, the element of causation is satisfied when the "injury has a rational, causal connection to the

                                                  5
work." Braden v. Sears, Roebuck & Co., 833 S.W.2d 496,498 (Tenn. 1992). The mere presence of
the employee at the place of injury because of the employment is not enough, as the injury must
result from a hazard peculiar to the work or be caused by a risk inherent in the nature of the work.
Blankenship, 164 S.W.3d at 354. Accordingly, "an injury purely coincidental, or contemporaneous,
or collateral, with the employment ... will not cause the injury ... to be considered as arising out of
the employment." Jackson v. Clark & Fay, Inc., 270 S.W.2d 389, 390 (Tenn. 1954).

     Applying these principles to this case, it is the finding of the Court that Employee's back and hip
pain did occur in the course and scope ofhis employment. According to the evidence submitted and
the testimony of Employee, Employee's complaints of pain began while he was on a truck driving
trip on behalf of his Employer. It is not significant that Employee was stopped for a lunch break, as
this was a requirement of the truck driving job. However, Employee has failed to sustain the
burden of proving that he sustained an injury by accident which arose primarily out of and in the
course and scope of employment. Employee's testimony was vague in describing how his alleged
injury occurred. He testified that he "stepped down out of my truck and I started hurting and I didn't
know what it was." He further testified that he was fine until he stopped for the lunch break and got
out of his truck, but he reported a different history to Nova Medical Center that he started hurting
earlier and became worse when he got out of his truck. Dr. Wolf reported that Employee's hip
condition was not the result of an acute injury. No medical doctor has reported that Employee's
alleged injuries arose primarily out of his employment. Employee has submitted insufficient
evidence to show that his alleged injuries arose primarily out of employment. Therefore, it is the
ruling of the Court that Employee has failed to establish that he sustained a compensable work-
related injury.

        2.      Employer is not obligated to provide temporary disability benefits or medical
             benefits.

        Employee has failed to prove that he sustained a compensable work-related injury.
Therefore, Employer/Carrier is not responsible for providing medical or temporary disability
benefits.

        IT IS, THEREFORE, ORDERED THAT Employee's interlocutory request in this
Expedited Hearing for temporary disability benefits and medical benefits is denied at this time on the
grounds that Employee has failed to prove that he sustained an injury by accident arising primarily
out of and in the course and scope of employment.

       ENTERED this the       9th   day of October, 2014.


                                               a y~-
                                               Jim Umsted, Judge
                                               Court of Workers' Compensation Claims




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  Right to Appeal:

  Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal the
  decision to the Workers' Compensation Appeals Board. To file a Request for Appeal, you must:

       1. Complete the enclosed form entitled: "Request for Appeal".

       2. File the completed form with the Court Clerk within seven (7) business days of the date the
          Expedited Hearing Order was entered by the Workers' Compensation Judge.

       3. Serve a copy of the Request for Appeal upon the opposing party.


                                    CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the
 following recipients by the following methods of service on this the 9th day of October, 2014.


Name                    Certified   First    Via    Fax       Via      Email Address
                        Mail        Class    Fax    Number    Email
                                    Mail
Robert Poindexter,      X                                      X       poindextercharters@gmail.com
Emplovee
Eugene Forrester,                                             X        esf@farris-Jaw .com
Employer's attorney

                                                        /
                                                                             J!l
                                                                           ~c/
                                                                                 -
                                                       Jim Umsted, Judge
                                                       Court of Workers' Compensation Claims




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