                                                                                   FILED
                                                                                  Jul 12, 2019
                                                                                 12:36 PM(CT)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                    CLAIMS




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

DARNELL BURTON,                              )   Docket No. 2018-08-1370
         Employee,                           )
v.                                           )
MEMPHIS LIGHT, GAS & WATER,                  )   State File No. 96632-2017
         Employer,                           )
and                                          )
ABIGAIL HUDGENS, as                          )
ADMINISTRATOR of the BUREAU                  )   Judge Deana Seymour
OF WORKERS’ COMPENSATION,                    )
SUBSEQUENT INJURY AND                        )
VOCATIONAL RECOVERY FUND.                    )


                           EXPEDITED HEARING ORDER


        The Court convened an Expedited Hearing on July 10, 2019, to determine whether
Memphis Light, Gas & Water should provide Darnell Burton additional medical benefits
for complaints allegedly stemming from a work-related motor vehicle accident. MLGW
argued it provided all benefits to which Mr. Burton is entitled and contended his current
complaints are not primarily related to the accident. The Court holds Mr. Burton is not
likely to prevail at trial regarding his claim for additional medical benefits at this time.

                                    History of Claim

       Mr. Burton worked as an operator for MLGW. On December 14, 2017, he injured
his right knee and low back following an accident in a company vehicle. MLGW
provided a panel of physicians from which he chose Dr. F. Gregory Wolf.

       Dr. Wolf treated Mr. Burton’s right knee and back with medication, physical
therapy, and epidural steroid injections. He ordered a lumbar MRI, which revealed no
acute abnormalities but showed multilevel degenerative changes. On February 28, 2018,
he released Mr. Burton at maximum medical improvement. According to Dr. Wolf, Mr.



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Burton was “basically back to baseline” and retained no permanent impairment to his
knee or back.

      In August, Mr. Burton returned to Dr. Wolf with continued complaints of low-
back pain. Dr. Wolf prescribed additional medication, placed Mr. Burton on restricted
work duty, and instructed him to return in two weeks.

        Before he returned, MLGW provided Dr. Wolf with medical records from Mr.
Burton’s primary care physician, which indicated that he complained of low-back pain
and radiation into both legs since 2014. MLGW then asked Dr. Wolf whether Mr.
Burton’s December 14, 2017 work injury contributed more than fifty percent to his
current symptoms. He said “no” and indicated a pre-existing condition, injury, or
degenerative condition caused his complaints. MLGW denied further treatment based on
this response, and Mr. Burton sought treatment on his own.

       The treatment included additional physical therapy and epidural steroid injections
from Dr. Andrew Crenshaw, whose October 4, 2018 office note indicated low-back and
bilateral leg pain that began “a couple of years” before.

       Later, Mr. Burton saw Dr. Keith Williams, who diagnosed chronic back pain. Dr.
Williams noted that he mentioned back pain “throughout the years,” which worsened
after his December 14, 2017 motor vehicle accident. Another lumbar MRI showed
multilevel foraminal stenosis, disc bulging and facet hypertrophy that caused mild L2-3
and moderate L3-4 central canal stenosis.

       Mr. Burton asked the Court to order MLGW to provide additional medical
treatment for his low back. He contended his symptoms worsened after Dr. Wolf released
him to full duty and now they affect his ability to work. He argued the accident caused
his condition and suggested the strenuous activities at work aggravated it.

       MLGW argued it provided Mr. Burton with all benefits to which he is entitled. It
relied on Dr. Wolf’s opinion that Mr. Burton’s current complaints were not primarily
related to his work accident. It further claimed that Mr. Burton complained of low-back
pain and radiation into his legs since 2014 but failed to mention those symptoms to Dr.
Wolf.

                      Findings of Fact and Conclusions of Law

       At an Expedited Hearing, Mr. Burton must provide sufficient evidence that he is
likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Specifically,
resolution of the present issue turns on whether Mr. Burton established that the accident
or his physical work duties following his release to full duty primarily caused or


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aggravated his lumbar spine condition and led to his current complaints.

       To prevail, Mr. Burton must prove that his condition “arose primarily out of and in
the course and scope of employment” or that he suffered an aggravation of a pre-existing
condition that “arose primarily out of and in the course and scope of employment.” Tenn.
Code Ann. § 50-6-102(14)(A) (2018). 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). Medical evidence is
generally required to establish a causal relationship, except in the most “obvious, simple
[or] routine cases.” Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk. Comp. App.
Bd. LEXIS 32, at *10-11 (May 18, 2017).

       To establish an aggravation of a pre-existing condition, Mr. Burton must present
expert medical evidence that the work incident “contributed more than fifty percent” in
causing his need for medical treatment of the pre-existing condition 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
opinion of the treating physician, selected by the employee from the employer’s
designated panel of physicians under § 50-6-204(a)(3), shall be presumed correct on the
issue of causation, but this presumption shall be rebuttable by a preponderance of the
evidence. Tenn. Code Ann. § 50-6-102(14)(E).

       Applying these legal principles, Mr. Burton selected Dr. Wolf from MLGW’s
designated panel of physicians. According to Dr. Wolf, Mr. Burton’s December 14, 2017
work injury did not contribute more than fifty percent to his current symptoms when
considering all other potential causes. MRIs of Mr. Burton’s lumbar spine revealed no
acute abnormalities but showed multilevel degenerative changes. Moreover, medical
records from his PCP indicate that he complained of low-back pain and radiation into
both legs since 2014. While Mr. Burton argued he was able to perform his job duties
without difficulty before his accident, he did not submit any medical evidence to oppose
Dr. Wolf’s opinion or to establish a work-related aggravation of a pre-existing condition
causing his current symptoms.

       For these reasons, Mr. Burton is not likely to prevail at a hearing on the merits on
his request for additional medical benefits.

       IT IS, THEREFORE, ORDERED as follows:

       1.     Mr. Burton’s request for medical benefits is denied at this time.

      2.    This case is set for a telephonic Status Hearing on August 26, 2019, at 9:30
a.m. Central Time. You must call toll-free at 866-943-0014 to participate in the


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hearing.



ENTERED July 12, 2019.



                         ____________________________________
                         Judge Deana C. Seymour
                         Court of Workers’ Compensation Claims




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                                    APPENDIX

Technical record:

TR1.   Petition for Benefit Determination
TR2.   Dispute Certification Notice
TR3.   Show Cause Order
TR4.   Request for Expedited Hearing, with Mr. Burton’s affidavit
TR5.   Transfer Order
TR6.   Order on Show Cause Hearing and Setting Expedited Hearing
TR7.   Employer’s Response in Opposition to Employee’s Request for Expedited Hearing

Exhibits:

1.     Employer’s First Report of Work Injury
2.     Employee’s Choice of Physician
3.     Wage Statement
4.     Medical records filed by Mr. Burton
5.     Medical records filed by MLGW
6.     Medical bills and prescription costs
7.     Dispute Certification Notice
8.     Automobile Accident Report
9.     Summary of Mr. Burton’s December 16, 2017 statement
10.    Brake Inspection Report
11.    Tennessee Department of Safety & Homeland Security documents (Collective)
12.    City Court Clerk report
13.    MLGW’s Response in Opposition to Employee’s Request for Expedited Hearing,
with attachments
14.    X-ray report dated July 8, 2014




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                           CERTIFICATE OF SERVICE

     I certify that a copy of this Order was sent as indicated on July 12, 2019.

Name                       Certified Via        Via     Service sent to:
                           Mail      U.S.       Email
                                     Mail
Darnell Burton,               X        X          X     4816 Berrydale Ave.
Employee                                                Memphis, TN 38118
                                                        darnellburton62@gmail.com
Sean Hunt,                                        X     sean@thehuntfirm.com
Employer’s Attorney
Timothy Kellum,                                   X     timothy.kellum@tn.gov
SIF Attorney


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




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