          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                         AT MURFREESBORO

MARGARET VIRGIL                              )   Docket No.: 2015-05-0274
         Employee,                           )
v.                                           )   State File Number: 43911-2015
NISSAN NORTH AMERICA                         )
         Employer.                           )   Judge Dale Tipps
                                             )



      EXPEDITED HEARING ORDER DENYING REQUESTED MEDICAL
                           BENEFITS


       This matter came before the undersigned workers’ compensation judge on January
5, 2016, on the Request for Expedited Hearing filed by the employee, Margaret Virgil,
pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of
this case is the compensability of Ms. Virgil’s back and right leg injury and her
entitlement to medical benefits. The central legal issue is whether Ms. Virgil is likely to
establish she suffered an injury arising primarily out of and in the course and scope of her
employment. For the reasons set forth below, the Court finds Ms. Virgil is not entitled to
the requested medical benefits at this time.

                                    History of Claim

       Ms. Virgil is a fifty-eight-year-old resident of Rutherford County, Tennessee. She
has worked for Nissan for thirty years. Since May 2015, she has worked as a PQA, a
quality assurance position. Before then, she worked in material handling for sixteen or
seventeen years. She described both jobs as physically demanding.

      Ms. Virgil described the onset of low back and right leg pain during her last year
in material handling. Her problems worsened when she began her new duties in May
2015, leading her to report a work injury to Nissan in June 2015. Nissan provided a
medical panel to Ms. Virgil, and she selected Dr. Jeffrey Hazlewood. (Ex. 8.)

       Dr. Hazlewood saw Ms. Virgil on June 17, 2015. He noted she had a twenty-year

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history of occasional low back pain. She began having low back pain after she began a
job requiring more standing and “a lot of bending.” Dr. Hazlewood characterized Ms.
Virgil’s pain as 60% in her low back and 40% in her right thigh. After examining Ms.
Virgil, his impression was “[m]echanical low back pain non-specific.” He did not feel
Ms. Virgil’s pain was discogenic and noted she had no radicular symptoms. He indicated
this was “non-specific back pain with probably some musculoligamentous component,
probably degenerative spine disease with a history of pre-existing back problems
intermittently.” (Ex. 2.)

           Dr. Hazlewood addressed causation as follows:

           I cannot state there is a structural injury here or relation to her work given
           the total assessment. Per page 1991, ‘The presence of non-specific low
           back pain cannot be construed as indicative of low back injury.’ There has
           been no association scientifically of lifting, awkward postures, or repetitive
           bending to idiopathic/non-specific back pain. . . . In summary, I cannot
           state this is a work related injury given this presentation.

Id.

       After receiving Dr. Hazlewood’s office note, Nissan denied Ms. Virgil’s claim on
June 23, 2015. (Ex. 9.) She sought treatment under her health insurance with Dr.
William Newton. Dr. Newton’s note of December 21, 2015, shows Ms. Virgil
complained of pain mostly in the posterior aspect of her right hip and gluteal area. He
noted, “a several year history of pain affecting the lower back but this [has] gotten
progressively worse over the past several weeks.” Dr. Newton reviewed Ms. Virgil’s
pelvic MRI and noted some evidence of partial tearing of the gluteous minimus insertion
on the right. He felt this was consistent with where she was having pain. He also noted
this was not likely to require surgery, but referred Ms. Virgil to Dr. Michael Jordan for a
surgical opinion. (Ex. 5.)

        At the request of Ms. Virgil’s attorney, Dr. Newton filled out a questionnaire on
January 4, 2015. He indicated that Ms. Virgil’s lower back and upper leg pain is the
result of lumbar spondylosis. He also opined that her condition was not primarily caused
by her employment at Nissan. (Ex. 4.)

      Ms. Virgil filed a Petition for Benefit Determination seeking medical benefits.
The parties did not resolve the disputed issues through mediation, and the Mediating
Specialist filed a Dispute Certification Notice. Ms. Virgil filed a Request for Expedited
Hearing, and this Court heard the matter on January 5, 2016.


1
    Of the AMA Guides to the Evaluation of Disease and Injury Causation, Second Edition.

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       At the Expedited Hearing, Ms. Virgil asserted she is entitled to medical benefits
for a repetitive motion condition arising primarily out of and in the course and scope of
her employment. She acknowledged that Dr. Hazlewood was her authorized physician,
but testified that his examination was cursory, lasting less than an hour and including no
MRI or diagnostic tests. She argued that his opinion is thus medically and legally
insufficient to merit the statutory presumption of correctness. Regarding Dr. Newton’s
causation opinion, Ms. Virgil notes that he only addressed whether her work caused her
lumbar spondylosis, not whether her work aggravated that pre-existing condition. She
contends that she has a proven injury, and the most likely cause of that injury or its
aggravation is many years of heavy physical work at Nissan.

        Nissan countered that Ms. Virgil is not entitled to workers’ compensation benefits
because she failed to present evidence that her injury arose primarily out of and in the
course and scope of her employment. It disputes that there are two distinct injuries,
noting the proof indicates Ms. Virgil reported a single injury to her low back and right
leg. Nissan contends Dr. Hazlewood’s opinion, as the authorized treating physician, is
entitled to a presumption of correctness and is supported by Ms. Virgil’s own doctor.

                       Findings of Fact and Conclusions of Law

       The Workers’ Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2015). In general, an employee bears the
burden of proof on all prima facie elements of his or her workers’ compensation
claim. Tenn. Code Ann. § 50-6-239(c)(6); see also Buchanan v. Carlex Glass Co., No.
2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn. Workers’ Comp.
App. Bd. Sept. 29, 2015). At an expedited hearing, an employee need not prove every
element of his or her claim by a preponderance of the evidence, but must come forward
with sufficient evidence from which the trial court can determine that the employee is
likely to prevail at a hearing on the merits consistent with Tennessee Code Annotated
section 50-6-239(d)(1) (2015). McCord v. Advantage Human Resourcing, No. 2014-06-
0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp. App. Bd.
Mar. 27, 2015). This lesser evidentiary standard “does not relieve an employee 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, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6.

       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(14) (2015). Injury is defined as “an injury by accident . . . arising primarily
out of and in the course and scope of employment, that causes death, disablement or the

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need for medical treatment of the employee.” Id. 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.”
Tenn. Code Ann. § 50-6-102(14)(A) (2015). “An injury ‘arises 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(14)(B) (2015).

       The parties dispute whether Ms. Virgil suffered two separate gradual injuries, a
single gradual injury, or an aggravation of a preexisting condition. The medical evidence
submitted to date makes it unnecessary to resolve that issue at this time.

       Ms. Virgil selected Dr. Hazlewood from a panel of physicians provided by Nissan.
Therefore, Tennessee Code Annotated section 50-6-102(14)(E) (2015) establishes a
rebuttable presumption of correctness for Dr. Hazlewood’s causation opinion. That
opinion stated that Ms. Virgil’s condition did not arise primarily out of her employment.

       Ms. Virgil objects to Dr. Hazlewood’s opinion on the ground that it was medically
deficient. Ms. Virgil, however, submitted no medical evidence to support this argument.
Ms. Virgil’s allegations regarding the quality of Dr. Hazlewood’s evaluation constitute
nothing more than a lay opinion. The Court cannot substitute its medical opinion, or that
of Ms. Virgil, for the professional opinion of Dr. Hazlewood. Absent a contrary medical
opinion, she cannot rebut the presumption of correctness afforded Dr. Hazlewood’s
opinion by the statute. Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *8 (Tenn. Workers’ Comp. App. Bd. Aug. 8, 2015).
Further, even if Dr. Hazlewood’s opinion were not entitled to the presumption of
correctness, Dr. Newton agrees that Ms. Virgil’s injury was not work-related. Ms.
Virgil’s contention that she suffered an aggravation of a pre-existing injury is, as she
acknowledged during the hearing, unsupported by any medical proof.

       Therefore, as a matter of law, Ms. Virgil has not come forward with sufficient
evidence from which this Court may conclude she is likely to prevail at a hearing on the
merits. Her request for medical benefits is denied at this time.

IT IS, THEREFORE, ORDERED as follows:


   1. Ms. Virgil’s claim against Nissan and its workers’ compensation carrier for the
      requested medical benefits is denied.

   2. This matter is set for an Initial (Scheduling) Hearing on February 11, 2016, at 9:00
      a.m.


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      ENTERED this the 13th day of January, 2016.


                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-
874-0473 to participate.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Central Time (CT).


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


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   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 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 of the 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.




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                                               APPENDIX

Exhibits:
   1. Medical History Intake form
   2. Dr. Jeffrey Hazlewood’s Initial Evaluation of June 17, 2015
   3. October 31, 2015 MRI report from The Imaging Center
   4. Dr. William Newton’s letter of January 4, 2016
   5. Dr. Newton’s December 21, 2015 office note
   6. First Report of Injury
   7. Employee/Manager Medical Statement
   8. Form C-42 Physician Panel
   9. Form C-23 Notice of Denial
   10. June 8, 2015 Nissan Attending Physician Report

Technical record:2
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




2
   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.



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                          CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Requested Medical Benefits was sent to the following recipients by the
following methods of service on this the 13th day of January, 2016.


Name                    Certified   Via        Via    Service sent to:
                         Mail       Fax       Email
Zachary Wiley                                  X      zwiley@forthepeople.com

Thomas Tucker                                  X      tomtucker@bellsouth.net




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




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