                                                                                 FILED
                                                                               Jul 26, 2018
                                                                              02:32 PM(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.                  )
                                             )

                    EXPEDITED HEARING ORDER DENYING
                           REQUESTED BENEFITS

       The Court convened an expedited hearing on July 10, 2018, to determine Gerald
C. Coon’s request for temporary disability and medical benefits. Commercial Warehouse
and Cartage, Inc. (CWC) opposed the request, arguing that Mr. Coon failed to carry his
burden of proving entitlement to either benefit. The Court agrees and denies Mr. Coon’s
request for benefits.

                                    Claim History

       This claim concerns an alleged injury from safety equipment failure. Mr. Coon
worked several jobs for CWC at its warehouse in Portland, Tennessee. One job, order
picker, required him to fill orders by removing products from stacked bins reaching as
high as thirty feet in the air. Mr. Coon rode a lift that elevated him to the appropriate
height to retrieve products from the bins. He wore a “safety lanyard”—a harness
attached to the lift—that kept him from falling. The lanyard worked similarly to a
seatbelt and would lock if Mr. Coon began to fall.

      Mr. Coon alleged he injured his back on September 22, 2017, when the lanyard
malfunctioned by locking up and jerking his body. He reported the injury to a CWC
supervisor but declined an offer of medical treatment, thinking he had only strained his
back. According to an incident report Mr. Coon completed after a previous workplace
incident, he suffered from chronic back problems for thirty years prior to that incident.

        Mr. Coon testified that his pain continued over the next several months and he
attributed his pain to the September 22 accident. He claimed that he asked several people
at CWC to see a doctor, but they denied his request.

       For its part, CWC presented testimony from several witnesses, in-person and by
declarations, indicating Mr. Coon neither exhibited difficulty performing his job nor
requested medical care after his injury. Lisa Bayless, the CWC environmental health and
safety manager, stated she “observed Mr. Coon able to perform his job duties without low
back/leg pain or symptoms during the period from September 22, 2017[,] through his last
day to physically work[.]” In a separate declaration, Diane Barber, Mr. Coon’s direct
supervisor, stated she never observed Mr. Coon having any low-back or leg problems.
She further stated Mr. Coon did not request medical treatment for these conditions over
the same period. Rendi Jordan, CWC’s human resources director, agreed with Ms.
Barber and testified she had several conversations with Mr. Coon following his alleged
injury in which he never requested medical treatment.

       Rick Schutte, another CWC employee, also testified that Mr. Coon never
requested medical care. However, Mr. Schutte did admit that Mr. Coon complained of
back pain. To mitigate this pain, Mr. Schutte moved Mr. Coon to the less strenuous job
preparing parts for inventory. Mr. Coon worked this job and several others from his date
of injury until November 17, the last day he worked at CWC.

       On November 19, 2017, Mr. Coon experienced more severe back pain. The
incident occurred when he exited the shower and reached for a towel. He went to the
emergency room (ER) room, and the records from that visit noted Mr. Coon gave a
history of having lower back pain and intermittent leg weakness that began about six
weeks earlier while lifting a heavy box at work. He described his pain on this day as
being in the same location in his back.

       The ER called CWC to inquire about the accident. Ms. Jordan received the call
and sent Ms. Bayless to the hospital to be with Mr. Coon. According to her declaration,
“Mr. Coon stated he was sitting at home drinking coffee and watching TV when he began
experiencing unbearable back pain.” The ER released Mr. Coon the same day but
imposed work restrictions.

       On December 8, 2017, Ms. Jordan sent Mr. Coon a letter via email informing him
that CWC could accommodate the restrictions. The letter invited Mr. Coon to “report to
work when you feel you are able to.” Mr. Coon sent a reply email indicating that other
conditions not related to his alleged work injury prevented him from returning to work.
CWC terminated him soon thereafter.

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       In early December, CWC offered Mr. Coon a panel of physicians from which he
selected Portland Family Care. He saw Randy Tidwell, a family nurse practitioner, on
December 11, 2017. Mr. Tidwell could not determine whether Mr. Coon’s symptoms
arose primarily out of and in the course and scope of his employment for CWC. 1 He
noted that Mr. Coon acted in an intimidating manner when Mr. Tidwell relayed his
causation opinion.

       Due to the conflict with Portland Family Care, CWC offered two more panels to
Mr. Coon. The physician chosen from the second panel declined to treat him. Mr. Coon
then selected Concentra from the third panel and saw Dr. Robert Carver in early January.
Dr. Carver diagnosed him with degenerative disc disease and lumbosacral radiculopathy.
He wrote the following in his notes: “Based on a careful exam of the patient, as well as
the information obtained about his job duties and mechanism of injury, it does not appear
that the presenting complaints arose out of his job duties in the course of the patient
performing those duties.” Dr. Carver released Mr. Coon from his care and imposed
workplace restrictions that “should remain in effect until seen by a spine surgeon.” Dr.
Carver also indicated Mr. Coon should seek treatment from a spine surgeon on his own.

       Thereafter, Mr. Coon saw Dr. Chine S. Logan, a neurosurgeon, who operated on
his back. Dr. Logan wrote a letter stating Mr. Coon “has a long standing history of
chronic low back pain” which grew worse after a long work shift. Upon review of his
symptoms, “radiographic findings” and “intraoperative observation,” Dr. Logan wrote
that Mr. Coon “experienced a work related aggravation of pre-existing lumbar
spondylotic disease process.”

       CWC sought its own causation opinion from Dr. William M. Gavigan, a
neurosurgeon. Dr. Gavigan reviewed Mr. Coon’s records and diagnosed a lumbar strain
occurring on September 22, 2017. He also diagnosed preexisting degenerative disc
disease and a left disc herniation that occurred in late November, approximately two
months after the date of his initial injury. He found that the lumbar strain arose from the
workplace accident but the disc herniation did not.

                           Findings of Fact and Conclusions of Law

       Mr. Coon seeks temporary disability benefits and medical treatment. Mr. Coon
need not prove every element of his claim by a preponderance of the evidence to receive
these benefits through an expedited hearing. Instead, he must present sufficient evidence
showing he would likely prevail at a hearing on the merits. McCord v. Advantage


1
 Mr. Tidwell, as a nurse practitioner, lacked the necessary credentials to give a causation opinion, and the
Court did not consider his opinion in its determination.

                                                     3
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The Court holds Mr. Coon failed to carry his burden and denies his claim.

       To receive benefits, Mr. Coon must show he suffered an injury “caused by a
specific incident, or set of incidents, arising primarily out of and in the course and scope
of employment . . . [that] is identifiable by time and place of occurrence.” An injury
“arises primarily out of and in the course and scope of employment” only if the
“employment contributed more than fifty percent (50%) in causing the injury,
considering all causes[.]” Tenn. Code Ann. § 50-6-102(14). “Except in the most
obvious, simple and routine cases, the claimant in a workers’ compensation action must
establish by expert medical evidence the causal relationship . . . between the claimed
injury (and disability) and the employment activity.” Orman v. William Sonoma, Inc.,
803 S.W.2d 672, 676 (Tenn. 1991).

      Ample proof suggested Mr. Coon had an accident at work. The witnesses
generally agreed that he reported an accident on September 22, 2017. The witnesses also
agreed that Mr. Coon declined medical treatment. After that, the proof diverged.

       Mr. Coon claimed he continued to suffer pain from the accident, which made it
difficult to do his job. He further claimed CWC declined to provide treatment when he
asked for it.

       CWC provided evidence contradicting Mr. Coon’s assertions. According to the
statements provided by Ms. Barber and Ms. Bayless, they saw no indication that Mr.
Coon continued to suffer pain from the accident. They further stated that Mr. Coon never
requested medical care for his condition from September 22—the date of the injury—
until November 17—the last day he worked for CWC. Ms. Jordan said she spoke on a
few occasions with Mr. Coon during this same period, and he never requested medical
treatment for his back. Additionally, she also said she would have provided Mr. Coon
treatment sooner if he had requested it. Mr. Schutte concurred with Ms. Jordan’s
testimony concerning that detail.

        Because the parties presented conflicting testimony, the Court must decide which
explanation is most plausible. This determination requires an inquiry of witness
credibility. The Court finds that Mr. Coon did not present credible testimony. While
testimony from a witness who is self-assured, steady, confident, forthcoming, reasonable
and honest indicates reliability, see Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn.
2014), Mr. Coon appeared reluctant, argumentative and even angry in his testimony.
Additionally, some of his testimony changed during the course of cross-examination in
an effort to evade providing answers harmful to his case. For example when asked about
riding his motorcycle on the day of a rally, he admitted riding it to get gas but denied
riding any further. Only when confronted with a photo of him sitting on a bike at the
rally did Mr. Coon admit he rode at the rally.

                                             4
       Conversely, Ms. Jordan and Mr. Schutte seemed reasonable and steady while on
the stand. Furthermore, the documentary evidence, in particular the panels of physicians
CWC provided to Mr. Coon, supported the testimony that CWC gave Mr. Coon medical
care when he asked for it. Because these witnesses testified in a manner indicating
honesty and reliability, and their testimony is corroborated by the documentary evidence,
the Court credits Ms. Jordan and Mr. Schutte’s testimony over that of Mr. Coon. In
crediting their testimony, the Court holds that Mr. Coon did not ask for additional
medical care until November 19, 2017.

       Although Mr. Coon declined care initially, CWC provided him several panels of
physicians when he finally requested treatment. In the end, three physicians provided an
opinion on the cause of his back condition. Dr. Carver, a panel physician, determined
that Mr. Coon suffered from degenerative disc disease and lumbosacral radiculopathy but
did not causally relate those conditions to his work at CWC. He suggested Mr. Coon
seek treatment for these non-work-related conditions privately and released him from
care. As a panel physician, Dr. Carver’s causation opinion is presumed correct. Tenn.
Code Ann. § 50-6-102(14)(E). Dr. Logan, a neurosurgeon whom Mr. Coon saw privately
and who operated on his back, provided a different causation opinion. He wrote that Mr.
Coon “experienced a work related aggravation of pre-existing lumbar spondylotic disease
process.” Dr. Gavigan, a neurosurgeon from whom CWC requested a causation opinion,
reviewed Mr. Coon’s records and diagnosed a lumbar strain occurring on September 22,
2017. He also diagnosed preexisting degenerative disc disease and a left disc herniation
that occurred in late November. He gave the opinion that the lumbar strain arose from
the September workplace accident but the disc herniation did not.

       In considering these three opinions and the evidence provided overall, the Court
finds that Mr. Coon failed to overcome the presumption of correctness attached to Dr.
Carver’s negative causation opinion. Although Dr. Logan, as a neurosurgeon, has a more
attended specialty to Mr. Coon’s condition, his causation opinion provided little detail
about what specific work activity caused Mr. Coon’s problems. In the Court’s opinion,
the lack of any language concerning the specific workplace accident in the causation
opinion—and the omission of any mention of the incident where Mr. Coon experience
pain while exiting the shower—indicates that Mr. Coon failed to give Dr. Logan a
complete history.

        Although the Court credits Dr. Carver’s opinion, the Court finds Dr. Gavigan’s
more detailed opinion more persuasive most persuasive. Considering his opinion in light
of the lay testimony, the Court finds that Mr. Coon’s compensable injury is confined to a
lumbar strain. As recounted above, Dr. Coon provided Mr. Coon authorized treatment
for the strain and indicated he needed no further care for this condition. The Court,
therefore, holds Mr. Coon would not likely prevail at a hearing on the merits in proving
entitlement to additional medical treatment for his workplace injury.

                                           5
       Regarding temporary disability benefits, the Court finds that Mr. Coon is
not entitled to them. An employee is entitled to receive temporary total disability
benefits under Tennessee Code Annotated § 50-6-207(1) whenever the employee
has suffered a compensable, work-related injury that has rendered the employee
unable to work. See Young v. Young Elec. Co., 2016 TN Wrk Comp. App. Bd.
LEXIS 41, at *11-12 (Sept. 14, 2016). Mr. Coon suffered a lumbar strain on
September 22, 2017. He presented no proof that any doctor took him off of work
due to the lumbar strain. The Court, therefore, finds that Mr. Coon is unlikely to
prevail at a hearing on the merits for temporary disability benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. The Court denies Mr. Coon’s request for temporary disability and
      additional medical benefits.

   2. This matter is set for a status conference on Monday, August 27, 2018, at
      10:00 a.m. (CDT). The parties must call 615-741-2113 or toll-free at
      855-874-0474 to participate in the Hearing. Failure to call in may
      result in a determination of the issues without your further
      participation.

ENTERED ON JULY 26, 2018.


                                  _________________________________
                                  Judge Joshua Davis Baker
                                  Court of Workers’ Compensation Claims




                                        6
                                        APPENDIX

Exhibits:

   1. Medical records
   2. Mr. Coon’s affidavit
   3. Medical panels
   4. First Report of Injury
   5. Email dated January 12, 2018
   6. Collections CWC business records
   7. Email and letter December 8, 2017
   8. Letter dated January 10, 2018
   9. Accident recordation documents dated May 19, 2017
   10. Accident recordation documents dated September 22, 2017
   11. Email dated December 18, 2017
   12. Accident recordation documents dated November 17, 2017
   13. Photos
   14. Rule 72 Declaration of Karen Robins
   15. Rule 72 Declaration of Lisa Bayless
   16. Rule 72 Declaration of Diane Barber
   17. Rule 72 Declaration of Rick Schutte
   18. Medical Records
   19. Medical report of Dr. Gavigan dated June 21, 2018
   20. Dr. Gavigan Comprehensive Report (for ID purposes only)
   21. Dr. Logan letter

Technical Record:

   1.   Petition for benefit determination
   2.   Dispute certification notice
   3.   Request for expedited hearing
   4.   Mr. Coon’s prehearing brief
   5.   CWC’s prehearing brief




                                             7
                           CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the foregoing was sent to the following
recipients by the following methods of service on July 26, 2018.


 Name                   Certified   Via     Via        Addresses
                        Mail        Fax     Email

 Gerald C. Coon                                X       coon_36@hotmail.com
 Thomas W. Tucker,                             X       tomtucker@bellsouth.net
 III




_______________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
Wc.courtclerk@tn.gov




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