                                                                                                               FILED
                                                                                                           October 12,.2016

                                                                                                            1N COURTOf
                                                                                                        WORKERS' Cm.IPENSA.TION
                                                                                                               CLAIMS

                                                                                                              Time : 9:33AM

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

Russell Pindell,                                                    Docket No.: 2016-08-0093
             Employee,
v.                                                                  State File No.: 6066-2016
Upchurch Industrial,
            Employer,                                               Judge Jim Umsted
And
Creative Risk Insurance Co.,
            Insurance Carrier.


                                    EXPEDITED HEARING ORDER
                                   DENYING REQUESTED BENEFITS


       This case came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by the employee, Russell Pindell, under Tennessee
Code Annotated section 50-6-239 (2015). The present focus of this case is whether the
employer, Upchurch Industrial, must provide medical benefits for Mr. Pindell's alleged
work-related back injury. The central legal issues are: (1) whether Mr. Pindell sustained
a compensable injury arising primarily out of and in the course and scope of his
employment with Upchurch Industrial and (2) whether Mr. Pindell is entitled to an
evaluation by an authorized physician to determine what additional medical care he
requires. For the reasons set forth below, the Court holds Mr. Pindell is unlikely to
succeed at a hearing on the merits in proving entitlement to the requested benefits. 1

                                                  History of Claim

       The following facts were established at the Expedited Hearing held on October 5,
2016. Mr. Pindell is a fifty-nine-year-old resident of Shelby County, Tennessee who
worked as a welder for Upchurch Industrial for approximately a year. Mr. Pindell
claimed he injured his back at work on October I, 2015, while lifting heavy pipes. He
admitted he did not immediately report his injury to Upchurch Industrial and did not note


1
    A complete listing of the technical record and exhibits is attached to this Order as an appendix.


                                                             1
 a work injury on his timesheet dated October 1, 2015. 2 He testified that instead he
 reported his injury to his project manager, Brian Grissom, a few days later. He also
 testified he told his supervisor, Johnny Jones. However, Mr. Grissom and Mr. Jones
 denied receiving notice from Mr. Pindell of any work injury prior to Mr. Pindell's layoff
 on October 29, 2015.

       Mr. Pindell continued working after his alleged injury until October 19, 2015,
when he claims he moved a metal plate at work, causing his pain to become so severe he
was no longer able to work. According to Mr. Pindell, he contacted supervisor Bobby
May on October 19, 2015, to report his injury. Mr. May testified at the Expedited
Hearing that Mr. Pindell advised he could not continue working on October 19, 2015, due
to his back. However, according to Mr. May Mr. Pindell was experiencing pain in his
back prior to October 19, 2015, and even came to work in a back brace on the 19th.
Furthermore, he stated Mr. Pindell never related his back issues to work.

      On October 20, 2015, Mr. Pindell obtained unauthorized medical treatment with
Dr. Bola Adamolekun at Wesley Neurology Clinic. The medical records introduced as
evidence indicate he advised Dr. Adamolekun his low back symptoms began about a
week earlier after lifting heavy equipment at work. Dr. Adamolekun ordered an MRI of
Mr. Pindell's lumbar spine and took him off work for a week. 3 The MRI performed on
October 27, 2015, showed abnormalities of multiple lumbar interspaces, but Dr.
Adamolekun did not relate these to a work incident.

       On October 28, 2015, Mr. Pindell contacted Upchurch Industrial to discuss his
return to work. Mr. May advised there was no work for him that day. 4 The following
day, Mr. Pindell came to the office, and he participated in a meeting with Mr. May and
Chris Boswell, a manager with Upchurch Industrial. After this meeting, Upchurch
Industrial laid off Mr. Pindell. The Separation Notice, dated October 29, 2015, indicated
the layoff resulted from a lack of work.

       Mr. Pindell returned for a follow-up appointment with Dr. Adamolekun on
November 2, 2015. During that visit, Dr. Adamolekun diagnosed him with lumbago and
lumbar spondylosis with radiculopathy. He also prescribed medication, referred Mr.
Pindell for pain management, and instructed him to return in one month.

2
   Upchurch Industrial employees are required to complete and sign a timesheet each day. On these timesheets,
employees document the number of hours worked, and their signatures validate the hours worked and that they were
not involved in any accidents at work that day. Mr. Pindell explained he did not note his injury on his October 1,
2015 timesheet because he did not know how serious the injury was and understood he would only receive
minimum wage for his work if he did not sign the timesheet.
3
   Mr. May admitted receiving the work status report taking Mr. Pindell off work, but the report did not relate the
injury to work.
4
  Mr. May testified he offered Mr. Pindell a pipefitting position on October 28, 20 15, but Mr. Pindell declined the
position because he was a welder not a pipefitter. According to Mr. May, there was no difference in pay between
the two positions.

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       At the Expedited Hearing, Mr. Pindell requested the Court to order medical
benefits for his work-related injuries. Upchurch Industrial asked the Court to deny the
request for benefits as Mr. Pindell had failed to meet his burden of proving an injury
arising primarily out of his employment on October 1, 2015.

                        Findings of Fact and Conclusions of Law

                                 General Legal Principles

       Mr. Pindell need not prove every element of his claim by a preponderance of the
evidence in order to recover medical benefits at an Expedited Hearing. McCord v.
Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). Instead, he must
come forward with sufficient evidence from which this Court might determine he is
likely to prevail at a hearing on the merits. Jd.; Tenn. Code Ann. § 50-6-239(d)(l)
(2015). This lesser evidentiary standard does not relieve Mr. Pindell of the burden of
producing evidence of an injury by accident that arose primarily out of and in the course
and scope of employment at an Expedited Hearing, but "allows some relief to be granted
if that evidence does not rise to the level of a 'preponderance of the evidence."'
Buchanan v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd.
LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).

                                      Compensability

       The Court initially must determine whether Mr. Pindell has met his burden of
proving he is likely to prevail at a hearing on the merits of his claim. To prove a
compensable injury under the workers' compensation statutes, Mr. Pindell must show his
injury was caused by an incident, or specific set of incidents, identifiable by time and
place of occurrence. Tenn. Code Ann. § 50-6-102(14)(A) (2015). In addition, his injury
must arise primarily out of and occur in the course and scope of the employment. Tenn.
Code Ann. § 50-6-1 02( 14) (20 15). "Arising primarily out of and in the course and scope
of employment" requires a showing, to a reasonable degree of medical certainty, that the
alleged work injury "contributed more than fifty percent (50%) in causing the . . .
disablement or need for medical treatment, considering all causes." Tenn. Code Ann. §
50-6-102(14)(C) (2015).

        The issue under consideration is whether Mr. Pindell injured his back at work on
October 1, 2015, as he claims. In analyzing whether he met his burden, the Court will
not remedially or liberally construe the law in his favor, but instead shall construe the law
fairly, impartially, and in accordance with basic principles of statutory construction
favoring neither Mr. Pindell nor Upchurch Industrial. See Tenn. Code Ann. § 50-6-116
(2015). Here, Mr. Pindell testified he injured his back on October 1, 2015, but he did not

                                             3
report this injury to anyone. He testified that within a few days following the incident, he
reported a work injury to his project manager, Mr. Grissom. He further testified he told
Mr. Jones and Mr. May about his work injury. However, all three testified that while Mr.
Pindell mentioned having back pain, he never claimed it was due to a work injury.
Moreover, his injury testimony is contradicted by the timesheet he signed on that day
confirming he did not sustain an injury and the fact he continued working until October
 19, 20 15. Furthermore, the medical evidence submitted by Mr. Pindell does not show
his injury was work-related. According to Upchurch Industrial, Mr. Pindell first advised
he was claiming a work injury after they terminated his employment on October 29,
2015. It is also of interest to the Court that Mr. Pindell had a doctor's release to return to
work on October 28, 2015, and he testified he asked Upchurch Industrial to allow him to
return to work. At the time, his injury was seemingly a minor back injury. Now, a year
later, he claims he has not been able to return to work and seeks ongoing medical
treatment.

        Based on the contradiction of Mr. Pindell's testimony by Mr. Grissom, Mr. Jones,
and Mr. May, Mr. Pindell's signature on the timesheet agreeing he sustained no work
injury, and the lack of corroborative expert medical testimony, the Court holds he is
unlikely to prevail at a hearing on the merits on the issue of causation. Having
determined this issue in favor of Upchurch Industrial, it is not necessary to address any
other issues raised by the parties.
       IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Pindell's claim against Upchurch Industrial for the requested medical benefits
      is denied at this time.

   2. This matter is set for an Initial Hearing/Status Conference on January 17, 2017, at
      1:30 p.m. Central time. This matter is transferred to Judge Robert Durham.

      ENTERED this the 12th day of October, 2016.


                                <h~~
                                   Judge Jim Umsted
                                   Court of Workers' Compensation Claims

Status Conference:

      A Status Conference has been set with Judge Robert Durham, Court of
Workers' Compensation Claims. You must call 615-253-9550 or toll-free at 855-
689-9049 to participate in the Initial Hearing.

      Please    Note:    You     must    call       in   on   the   scheduled   date/time   to
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participate. Failure to call in may result in a determination of the issues without
your further participation.


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 Notice of
Appeal, you must:

          1. Complete the enclosed form entitled: "Expedited Hearing Notice of
             Appeal."

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

         3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing
            party.

         4. The appealing party is responsible for payment of a filing fee in the
            amount of $75.00. Within ten calendar days after the filing of a notice of
            appeal, payment must be received by check, money order, or credit card
            payment. Payments can be made in person at any Bureau office or by
            United States mail, hand-delivery, or other delivery service. In the
            alternative, the appealing party may file an Affidavit of Indigency, on a
            form prescribed by the Bureau, seeking a waiver of the filing fee. The
            Affidavit of Indigency may be filed contemporaneously with the Notice of
            Appeal or must be filed within ten calendar days thereafter. The Appeals
            Board will consider the Affidavit of Indigency and issue an Order granting
            or denying the request for a waiver of the filing fee as soon thereafter as is
            practicable. Failure to timely pay the filing fee or file the Affidavit of
            Indigency in accordance with this section shall result in dismissal of the
            appeal.

         5. The parties, having the responsibility of ensuring a complete record on
            appeal, may request, from the Court Clerk, the audio recording of the
            hearing for the purpose of having a transcript prepared by a licensed court
            reporter and filing it with the Court Clerk within ten calendar days of the
            filing of the Expedited Hearing Notice of Appeal. Alternatively, the parties
            may file a joint statement of the evidence within ten calendar days of the
            filing of the Expedited Hearing Notice of Appeal. The statement of the
            evidence must convey a complete and accurate account of what transpired

                                           5
   in the Court of Workers' Compensation Claims and must be approved by
   the workers' compensation judge before the record is submitted to the
   Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the
   interlocutory appeal, the appellant shall file such position statement with
   the Court Clerk within five business days of the expiration of the time to
   file a transcript or statement of the evidence, specifying the issues presented
   for review and including any argument in support thereof. A party
   opposing the appeal shall file a response, if any, with the Court Clerk
   within five business days ofthe filing of the appellant's position statement.
   All position statements pertaining to an appeal of an interlocutory order
   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.




                                  6
                                               APPENDIX

Exhibits:
   1. Affidavit of Russell Pindell;
   2. Mr. Pindell's Timesheet, dated October 1, 2015;
   3. Work Status report from Wesley Neurology Clinic, dated October 20, 2015;
   4. Collective Exhibit of Wesley Neurology Clinic medical records, dated October 20,
      2015, and November 2, 2015;
   5. Correspondence sent to Upchurch Industrial's human resources department on
      November 30, 2015, by Mr. Pindell's attorney;
   6. Form C-20 Employer's First Report of Work Injury or Illness;
   7. Form C-41 Wage Statement; and
   8. Mr. Pindell's Separation Notice, dated October 29, 2015.

Technical Record: 5
   1. Petition for Benefit Determination;
   2. Dispute Certification Notice;
   3. Request for Initial Hearing;
   4. Order on Request for Initial Hearing;
   5. Request for Expedited Hearing;
   6. Upchurch Industrial's Pre-Expedited Hearing Statement; and
   7. Mr. Pindell's Pre-Expedited Hearing Statement.




5
  The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
                           CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing was sent to the
 following recipients by the following methods of service on this the 12th day of
 October, 2016.

Name                   Certified     Via   Via      Email Address
                       Mail          Fax   Email
Miranda Rhoads,                               X     mrhoads@forlhepeon le.com
Employee's Attorney                                 lhaygood@forthepeople.com
Chad Jackson,                                  X    cjackson@morganakins.com
Employer's Attorney



                                   ~m,~~
                                   Cou·;~ ;;ryJ~rkers' Compensation Claims
                                   WC.CourtClerk@tn.gov




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