                                                                                FILED
                                                                              May 31, 2019
                                                                              10:22 AM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




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

 GERALD C. COON,                           )
          Employee,                        )   Docket No. 2018-06-0018
 v.                                        )
 COMMERCIAL WAREHOUSE AND                  )
 CARTAGE, INC.,                            )   State File No. 96917-2017
          Employer,                        )
                                           )
 And                                       )
 WESTFIELD GROUP,                          )   Judge Joshua Davis Baker
         Insurance Carrier.                )

                      COMPENSATION HEARING ORDER


      At the compensation hearing on May 28, 2019, the parties disputed whether Mr.
Coon suffered a work-related injury. At the close of Mr. Coon’s proof, Commercial
Warehouse and Cartage, Inc. (CWC) moved for involuntary dismissal, arguing that Mr.
Coon did not prove medical causation. The Court grants CWC’s motion for involuntary
dismissal.

                                  History of Claim

       Mr. Coon alleged a back injury when his safety lanyard malfunctioned while
working for CWC. CWC offered him medical care, but he declined because he assumed
he had only strained his back.

      About two months after the lanyard incident, Mr. Coon experienced immediate,
extreme back pain while grabbing for a towel as he exited the shower at home. He
sought emergent care and told the ER workers his pain resulted from lifting a heavy box
at work, as opposed to the lanyard incident. The medical provider contacted CWC for
medical treatment authorization. Several weeks later, Mr. Coon received treatment from
Dr. Robert Carver, whom he chose from a panel.
       Dr. Carver completed a C-32 Standard Form Medical Report noting the lanyard
incident did not cause Mr. Coon’s back problem. He wrote, “Based upon his mechanism
of injury (bending over while wearing a safety harness that prevented him from easily
bending over) I do not believe his injury was work-related.”1 He also indicated in several
places on the C-32 that Mr. Coon’s injury was not caused by his work.

       CWC timely notified Mr. Coon it intended to use Dr. Carver’s C-32 report as
proof at trial instead of taking his deposition. Mr. Coon objected to CWC using the
report but never deposed Dr. Carver.

                          Findings of Fact and Conclusions of Law

       CWC challenged the compensability of Mr. Coon’s injury, so the burden falls to
him to prove all essential elements of his claim. Tenn. Code Ann. § 50-6-239(c)(6)
(2018) (“[T]he employee shall bear the burden of proving each and every element of the
claim by a preponderance of the evidence.”). The essential element that Mr. Coon did
not prove is medical causation.

        Proving medical causation requires an employee to show to a reasonable degree of
medical certainty that “the employment contributed more than fifty percent (50%) in
causing the death, disablement or need for medical treatment, considering all causes.”
Id. at 50-6-102(14)(C). Unless an injury is obvious, an “employee must present expert
medical proof that the alleged injury is causally related to the employment.” Berdnik v.
Fairfield Glade Com’ty Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at *11
(emphasis added). Lay testimony alone will not suffice. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *12 (Aug. 18, 2015)
(“Employee’s lay testimony in this case, without corroborative expert testimony, did not
constitute adequate evidence of medical causation.”).

       The cause of a back injury is not obvious, simple, or routine, as back injuries occur
in numerous ways and for diverse, complicated reasons. Therefore, Mr. Coon needed
expert medical proof to prevail. He failed to produce it.

      Further, the only expert testimony presented at trial—Dr. Carver’s—showed that
Mr. Coon’s work at CWC did not cause his back injury. As the panel physician, his
opinion on medical causation is presumed correct, unless rebutted. See Tenn. Code Ann.



1
 Mr. Coon asked to submit a letter from Dr. Chine Logan as proof of causation, but the Court sustained
CWC’s objection that it was inadmissible hearsay. The parties deposed Dr. Logan, but neither filed the
deposition transcript.
                                                  2
§ 50-6-102(14)(E). Mr. Coon presented no evidence to rebut Dr. Carver’s opinion and,
therefore, failed to prove an essential element of his claim.

        Because Mr. Coon failed to prove an essential element of his claim, CWC made a
motion for involuntary dismissal. After “the plaintiff in an action tried by the court
without a jury has completed presentation of plaintiff’s evidence, the defendant . . . may
move for dismissal on the ground that upon the facts and the law the plaintiff has shown
no right to relief.” Tenn. R. Civ. P. 41.02(2). When the “plaintiff’s case has not been
established by a preponderance of the evidence, then the case should be dismissed if the
plaintiff has shown no right to relief on the facts found and the applicable law.” Bldg.
Materials Corp. v. Britt, 211 S.W.3d 706, 711 (Tenn. 2007).

       CWC asked the Court to dismiss Mr. Coon’s claim for lack of expert medical
evidence of causation. The Court finds that the lack of expert medical proof of causation,
an essential element of his workers’ compensation claim, was a death knell to Mr. Coon’s
case. The Court grants CWC’s motion for involuntary dismissal.

                                         Motions

       The parties filed multiple motions that were resolved or waived except for CWC’s
two motions for sanctions under Tennessee Rule of Civil Procedure 11, where it sought
attorney fees or other punitive measures against Mr. Coon. While Mr. Coon committed
actions that might have warranted sanctions, the Court denies the motions.

IT IS, THEREFORE, ORDERED as follows:

   1. This claim is dismissed with prejudice to its refiling.

   2. The Court assesses the $150.00 filing fee to CWC to be paid to the Court Clerk
      and for which execution shall issue as necessary.

   3. Absent an appeal to the Appeals Board, this order shall become final thirty days
      after issuance.

   4. CWC shall file the SD-2 Form with the Court Clerk within ten business days of
      entry of this Order.

ENTERED MAY 31, 2019.

                                   ____________________________________
                                   Judge Joshua Davis Baker
                                   Court of Workers’ Compensation Claims
                                             3
                                     APPENDIX

Exhibits:

   1. Medical records
   2. First Report of Injury
   3. Wage Statement
   4. Workplace Incident Report Dated May 9, 2017
   5. Workplace Incident Report Dated September 22, 2017
   6. Workplace Incident Report Dated November 11, 2017
   7. Dr. Carver’s C-32 Standard Form Medical Report and Attachments
   8. Dr. Carver’s Updated CV
   9. CWC New Hire Checklist
   10. Choice of Physician Forms
   11. Authorization Medical Records Release

Technical record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Scheduling Hearing Order
   4.   Second Motion for Rule 11 Sanctions
   5.   Third Motion for Rule 11 Sanctions
   6.   CWC’s Witness and Exhibit List
   7.   CWC’s Pretrial Brief
   8.   Mr. Coon’s Pretrial Brief




                                          4
                          CERTIFICATE OF SERVICE

     I certify that a correct copy of this Order was sent as indicated on May 31, 2019.


Name                     Certified   First        Via Service sent to:
                          Mail       Class       Email
                                     Mail
Gerald Coon,                                      X     Coon_36@hotmail.com
Employee
Thomas Tucker,                                    X     ttucker@veazeytucker.com
Employer’s Attorney                                     tomtucker@bellsouth.net




                                 _____________________________________
                                 Penny Shrum, Clerk
                                 Court of Workers' Compensation Claims
                                 WC.CourtClerk@tn.gov




                                             5
                                 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
