                                                                                              FILED
                                                                                           May 07, 2018
                                                                                           02:28 PM(CT)
                                                                                        TENNESSEE COURT OF
                                                                                       WORKERS' COMPENSATION
                                                                                              CLAIMS




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

Keith Quarles,                                     )    Docket No.: 2017-08-1170
            Employee,                              )
v.                                                 )
FedEx Ground,                                      )   State File Number: 39797-2017
              Employer,                            )
And                                                )
Self-Insured,                                      )   Judge Deana Seymour
              Insurance Carrier.                   )


                EXPEDITED HEARING ORDER DENYING MEDICAL
                   AND TEMPORARY DISABILITY BENEFITS


       Mr. Quarles requested medical and temporary disability benefits for injuries to his
right ankle, left knee, and right shoulder. FedEx Ground (FedEx) contended the injuries
were not work-related. This Court heard the contested issues at an Expedited Hearing on
April 13, 2018, and holds Mr. Quarles failed to establish he would likely prevail at a
hearing on the merits regarding entitlement to medical and temporary disability benefits.
Thus, the Court denies his request.

                                         History of Claim

         Mr. Quarles worked as a package handler for FedEx since February 2015. He
  htimed he injur d his right shoulder right anlde, and left knee by repetitively unloading
tru ks and scanning boxe at work. 1 _Mr. QuarJes did not know the cause of hi symptoms
at first, so he went to Dr. Richard Hillesheim on his own for treatment. Dr. Hillesheim
later completed a Standard Form Medical Report (C-32), on which Mr. Quarles relied to
prove the cause of his injuries. The report did not include Dr. Hillesheim's curriculum
vitae or his medical records. It identified Mr. Quarles's injury as "left knee degenerative
osteoarthritis." Dr. Hillesheim indicated Mr. Quarles's work was "primarily responsible"

1
  Although Mr. Quarles did not allege a specific work injury, he used November 8, 2016, for the date of
injury.

                                                  1
for treatment but dtd not aggravate his pre-existing condition. However, the doctor also
reported that Mr. Quarles's work activities primarily required treatment of the pre-
existing condition.

        FedEx denied that Mr. Quarles sustained a work-related injury, but rather his
conditions arose due to non-work-related pre-existing conditions. It relied on Mr.
Quarles's longstanding medical history, which included right shoulder surgery for rotator
cuff impingement in 1998 that resulted in a permanent impairment with lifting
restrictions. 2 It also relied on the fact that orthopedist Dr. W.H. Knight diagnosed Mr.
Quarles with a right rotator cuff tear in 20 11 and on records indicating Mr. Quarles's
right-shoulder symptoms worsened after a minor auto accident in October 2015. Fed-Ex
also relied on records indicating that Mr. Quarles continued to treat for ongoing
symptoms of chronic osteoarthritis and weakness in his right shoulder, left knee, and
right ankle first at Christ Community Health Services and then at Regional One before
the alleged date of the work-relatedness of his conditions.

       Following FedEx's denial of his claim, Mr. Quarles filed a Petition for Benefit
Determination on October 23, 2017. He asked for a panel of physicians and temporary
disability benefits for time off work due to his injuries.

                           Findings of Fact and Conclusions of Law

                                          Standard Applied

       At an Expedited Hearing, Mr. Quarles must come forward with sufficient evidence
from which the trial court can determine that he is likely to prevail at a hearing on the
merits. Tenn. Code Ann.§ 50-6-239(d)(1) (2017).

                                              Causation

      The central legal issue is whether Mr. Quarles presented sufficient evidence from
which the trial court can determine that he is likely to prevail at a hearing on the merits.
The Court finds that he did not.

        To prevail on causation, Mr. Quarles must establish he suffered an accidental
injury that was "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) (2017). An aggravation of a pre-

2
 Dr. Knight restricted Mr. Quarles' lifting to thirty to thirty-five pounds at MMI in 1999. However, Mr.
Quarles asked him to remove the restrictions, which he did in 2001. Dr. Knight's records show
"clarification" of right shoulder restrictions, which continued through the last note from Dr. Knight in
2011.


                                                   2
existing condition is only compensable to the extent that the aggravation "arose primarily
out of and in the course and scope of employment." I d.

        Mr. Quarles did not experience a specific incident at work that he could identify
by time and place. So, the Court looks to the medical evidence to determine whether Mr.
Quarles sustained a compensable aggravation as defined by the statutory language quoted
above. To establish work-relatedness, Mr. Quarles must present expert medical evidence
that the work incident "contributed more than fifty percent (50%)" in causing his need for
medical treatment, meaning the work accident was more likely than not the cause, when
considering all other potential causes. Tenn. Code Ann. § 50-6-102(14)(C)-(D); Miller v.
Lowe's Home Centers, Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 40, at *13 (Oct. 21,
2015). The aggravation need not be permanent for Mr. Quarles to receive medical
benefits. I d. at *18.

       Dr. Hillesheim's C-32 offers the only suggestion of work-relatedness in evidence
to contradict the fact that Mr. Quarles received years of treatment for osteoarthritis before
the date he claimed workers' compensation benefits for his conditions. However, the
Court gives little weight to Dr. Hillesheim's opinions for several reasons. First, Mr.
Quarles did not provide the doctor's curriculum vitae with the C-32 and thus did not
qualify the doctor to give a causation opinion. See Tenn. Code Ann. § 50-6-235(c).
Moreover, he failed to introduce Dr. Hillesheim's medical records to establish a basis for
his opinions. Since Dr. Hillesheim was not an authorized treating physician, his opinion
is not entitled to a presumption of correctness. See Tenn. Code Ann. § 50-6-204(a)(3)
(2017). In view of the above, the Court rejects Dr. Hillesheim's proffered opinions at this
time.

       For the above reasons, the Court holds Mr. Quarles did not come forward with
sufficient evidence to establish he would prevail at a hearing on the merits regarding
causation.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Quarles's claim against FedEx and its workers' compensation carrier for the
      requested benefits is denied at this time.

   2. This matter is set for a Scheduling Hearing on June 18, 2018, at 9:30 a.m.
      Central Time. You must call 615-532-9550 or toll-free at 866-943-0014 to
      participate in the Hearing. Failure to call may result in a determination of the
      issues without your participation.




                                             3
ENTERED May 7, 2018.




                  '~ ~ JUDGE DEANA C. SEYMOUR
                       Court of Workers' Compensation Claims




                              4
                                         APPENDIX

Exhibits:
   1. Medical records from Regional One Health
   2. Form C-32 Standard Form Medical Report for Industrial Injuries
   3. Form C-20 Employer's First Report of Work Injury or Illness
   4. Denial letter, dated June 8, 2017
   5. Mr. Quarles' timesheets
   6. Mr. Quarles' personnel records
   7. Medical records from Christ Community Health Services
   8. Personal testimony ofMr. Quarles
   9. Emails between Mr. Quarles and adjuster Denise Musice
   IO.Form C-41 Wage Statement
   11. UT Health Science documentation regarding Dr. Richard                    Hillesheim
       (Identification purposes only)


Technical Record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing, with attached Affidavit of Keith Quarles
   4. Order Denying Employee's Request for a Decision on the Record
   5. Order Substituting Counsel for Employer

                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on this the _ 7th_ day ofMay, 2018.


Name                         Certified   Via       Via     Service sent to:
                             Mail        Fax       Email
Keith Quarles,                  X                    X     255 N. Lauderdale
Employee                                                   Memphis, TN 38105;
                                                           kcq3@netzero.net
Byron Lindberg,                                      X     blindberg@hallboothsmith.com
Employer's Attorney                                        tthompson@hallboothsmith.com



                                          Penny ~ rum, Clerk of Court
                                          Court of Workers' Compensation Claims
                                          WC.Con r·tCierlc@tn. gov


                                               5
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   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 of the 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 Indigency will
      result in dismissal of the 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. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business 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 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. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements 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.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
   Filed Date Stamp Here                     EXPEDITED HEARING NOTICE OF APPEAL
                                                  Tennessee Division of Workers' Compensation
                                                                                                     Docket#: - - - -- -- - --
                                                      www.tn.go v/labor-wfd/wcomp.shtm l
                                                                                                     State File #/YR: - - -- - - --
                                                             wc.courtclerk@tn.gov
                                                                1-800-332-2667                       RFA#: _ _ _ _ _ _ _ _____ _

                                                                                                     Date of Injury: - - - -- - - - -
                                                                                                     SSN: _______ _ ______ __




                      Employee


                      Employer and Carrier

          Notice
          Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
                                    [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at _ __

           -~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
           [List the date(s) the order(s) was filed in the court clerk's office]

          Judge___________________________________________

          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal:




          Additional Information
          Type of Case [Check the most appropriate item]

                             D   Temporary disability benefits
                             D   Medical benefits for current injury
                             D   Medical benefits under prior order issued by the Court

          List of Parties
          Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
          Address:. _______________________ ______________ ___________

          Party's Phone:.____________________________ Email: _________________________

          Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -

          Attorney's Address:. _ _ _ _ _~~-~~~~----~~----                                             Phone:
          Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
          Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __

                                        *Attach an additional sheet for each additional Appellant*

LB-1099    rev.4/15                                        Page 1 of 2                                                     RDA 11082
Employee Name: - - - -- - - -- - - -              SF#: _ _ _ _ __ _ _ _ _ DO l: _ __             _ __




Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee



Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __

Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:

Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

                       * Attach an additional sheet for each additional Appellee *


CERTIFICATE OF SERVICE

I,                                             certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the              day of__, 20_ .



[Signature of appellant or attorney for appellant]



LB-1099   rev.4/1S                                Page 2 of 2                              RDA 11082
 .
ll                                                                                                                 .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: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/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
