                                                                                            FILED
                                                                                         Dece mber 8, 2014
                                                                                          T:>i COt;RTOF
                                                                                      WORKERS' COMPE:>iSAT!O:>i
                                                                                               C LAI~ I S


                                                                                            Time : 7:15 A:\1


                    COURT OF WORKERS' COMPENSATION CLAIMS
                      DIVISION OF WORKERS' COMPENSATION


EMPLOYEE: Jimmy Cooper                                  DOCKET#: 2014-08-0010
                                                        STATE FILE#: 62458/2014
EMPLOYER: Federal Express Corporation                   DATE OF INJURY: July 31, 2014

TPA: Sedgwick CMS

                                EXPEDITED HEARING ORDER

       THIS CAUSE came before the undersigned Workers' Compensation Judge upon the Request
for Expedited Hearing filed by Jimmy Cooper (Employee).

        On September 26, 2014, a Request for Expedited Hearing was filed with the Tennessee Court
of Workers' Compensation Claims, Division of Workers' Compensation, on behalf of Employee
pursuant to Tennessee Code Annotated section 50-6-239 to determine if the provision of medical
benefits and/or temporary disability benefits is appropriate. Employee requested an evidentiary
hearing.

       The Expedited Hearing was originally scheduled for October 22, 2014. At that time
Employee made a request for a continuance to retain an attorney. Employee's request was granted
and the case was reset for hearing on November 13, 2014.

         The Court conducted a telephonic hearing on November 13,2014. Employee appeared pro
se, and advised that he had not retained an attorney. Federal Express Corporation and Sedgwick
CMS (Employer/TPA) were represented by attorney Jonathan May. Considering the positions of the
parties, the applicable law and all of the evidence submitted, the Court hereby finds that Employee is
not entitled to medical benefits or temporary disability benefits.

                                            ANALYSIS

                                               Issues

   1. Whether Employee sustained an injury that arose primarily out of and in the course and
      scope of employment with Employer.

   2. Whether Employer is obligated to provide medical benefits and/or temporary disability

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        benefits.

                                        Evidence Submitted

        The Court received and considered the following documentation and information submitted
by the parties:

       Exhibits 1-4 were marked for identification only and were not admitted into evidence.
Exhibits 5-9 were admitted into evidence by agreement of the parties.

       Exhibits 10-21 are medical records dated prior to the date of alleged injury which show
Employee's prior medical treatment for similar injury. All of these Exhibits other than Exhibit 12
(MRI report dated December 6, 2011) were authenticated by electronic signature of a physician.
There was no objection to the authenticity ofExhibits 10-21. Employee, however, objected to the
introduction into evidence of these medical records dated prior to the alleged date of injury, on the
ground of relevancy. An issue in this case is whether Employee sustained an injury that arose
primarily out of and in the course and scope of employment. The Court determined that records of
Employee's prior medical condition would be relevant to prove or disprove this issue. Therefore,
Employee's objection was overruled, and Exhibits 10-21 were admitted into evidence.

       Exhibits 22-28 were admitted into evidence by agreement of the parties.

               Exhibit Number:

                    1.   Request for Expedited Hearing, filed September 26, 2014
                    2.   Dispute Certification Notice, dated September 26, 2014
                    3.   Petition for Benefit Determination, filed September 5, 2014
                    4.   Employer's Position Statement dated September 17, 2014

                    5.   Form C20- Employer's First Report of Work Injury
                    6.   Form C41- Wage Statement (Average Weekly Wage $596.97)
                    7.   Job Description of Employee
                    8.   Employee's handwritten description of injury, dated August 7, 2014
                    9.   Form C42 - Panel of Physicians - Dr. Fereidoon Parsioon selected by
                         Employee on August 12, 2014

                    10. Medical records, Dr. Ki Chang, dated September 15,2011
                    11. Medical records, Dr. Chang, dated November 30, 2011
                    12. Medical records, Desoto Imaging Specialists, MRI dated December 6, 2011
                    13. Medical records, Dr. Chang, dated January 13, 2012
                    14. Medical records, Semmes Murphy Clinic (Dr. Daniel Holt), dated February
                        16,2012
                    15. Medical records, Semmes Murphy Clinic (Dr. Samuel Polk), dated March 19,
                        2012
                    16. Medical records, Dr. Chang, dated March 12, 2013

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                    17. Medical records,   Dr.   Chang, dated April 2, 2013
                    18. Medical records,   Dr.   Chang, dated June 24, 2013
                    19. Medical records,   Dr.   Chang, dated August 12,2013
                    20. Medical records,   Dr.   Chang, dated October 18,2013
                    21. Medical records,   Dr.   Chang, dated June 27, 2014

                   22. Medical records, Concentra Medical Centers, dated August 7, 2014
                   23. Medical records, Baptist Desoto Internal Medicine (Dr. Chang), dated August
                       14,2014
                   24. Medical records, Phoenix Neurosurgery (Dr. Parsioon), dated August 21,
                       2014
                   25. Medical records, Desoto Imaging Specialists, MRJ dated August 27, 2014
                   26. Medical records, Phoenix Neurosurgery (Dr. Parsioon), dated September 4,
                       2014

                   27. Medical records, Phoenix Neurosurgery (Dr. Parsioon), dated October 9,
                       2014
                   28. Laboratory Report, Pacific Toxicology Laboratories, dated September 8, 2014

                                    Stipulations of the Parties

        The parties stipulated the following to be correct:

    1. Federal Express Corporation is an "Employer" as defined by Tennessee Workers'
       Compensation law;
    2. On July 31, 2014, Robert Cooper was an "Employee" of Federal Express Corporation as
       defined by Tennessee Workers' Compensation law;
    3. Robert Cooper's Average Weekly Wage (AWW) is $596.97, and his weekly Compensation
       Rate (CR) is $397.98.

                                           History of Claim

         According to a First Report of Injury (Ex. 5), on August 6, 2014, Employee reported pain in
his lower back which he related to an incident on July 31, 2014, when he was lifting boxes and
loading containers on a slide. Employee's supervisor, Charles Tyler, manager of hub operations,
testified that on August 6, 2014, he advised Employee that his work performance was below
acceptable standards. According to Mr. Tyler, Employee told him that he was having difficulty
working because he hurt his back at work on July 31, 2014. Mr. Tyler testified that he had observed
Employee at work and could not tell that Employee was injured. He also could not locate any
witnesses that could confirm Employee's alleged injury.

       Employer sent Employee to Concentra Medical Center (Concentra) for treatment on August
7, 2014 (Ex. 22). Employee gave a history that he believed he had exacerbated a lower back injury
he received in 2011. Concentra assigned limited work restrictions and referred Employee to a
neurosurgeon for treatment. Employee attempted to return to work, but Employer advised that it did

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not have any light duty work.

        Employer gave Employee a panel of neurosurgeons and Employee selected Dr. Fereidoon
Parsioon at Phoenix Neurosurgery, who saw him on August 21, 2014. Employee gave a history of
injury at work lifting packages and stated that he had the same symptoms in 2011 and treated at
Semmes Murphy Clinic with a lumbar epidural block. Dr. Parsioon reviewed a prior MRI from 2011
which showed a left L5/S 1 disc protrusion. Dr. Parsioon noted:

        In my opinion, [Employee's] new injury either caused aggravation of the old disc
        protrusion at L5/S 1 on the left or has caused some new problems at other levels for
        him. As such, I believe that this new problem is related to his work injury.

        He needs to be evaluated with an MRI of the lumbar spine so we can compare this to
        the MRI of2011. Ifthis disc at L5/S1 on the left is not any larger, then it would be
        aggravation of a pre-existing condition due to this lifting injury. If there is another
        disc at any other level or ifthis disc is significantly enlarged, then the new injury is
        the cause of his problems ... I kept him off work.

       The MRI ordered by Dr. Parsioon was performed on August 27, 2014 (Ex. 25). Employee
returned to Dr. Parsioon on September 4, 2014, at which time the MRI was reviewed and compared
to the 2011 MRI. Dr. Parsioon reported that the protrusion at L5/S1 was now very minimal
compared to the 2011 MRI. He explained that sometimes discs shrink and go back into place. The
MRI showed that there was no ruptured disc or impingement of the neural structures present. Dr.
Parsioon ordered three weeks of physical therapy and noted that Employee could return to work on
September 5, 2014, with a twenty pound lifting restriction. Employee was instructed to return to Dr.
Parsioon after completing physical therapy and, at that time, he would be released to regular work
duty without restrictions. Employer denied the claim after this visit, no physical therapy was
provided, and Employee was not authorized to return to Dr. Parsioon.

       Employer paid for authorized medical treatment with Concentra and Dr. Parsioon through
September 4, 2014. No temporary disability benefits have been paid. Employee testified that his
Employer offered to allow him to return to work on October 20, 2014, but he refused because he had
not been released by a physician. Employee testified that he has not returned to work.

         Medical records (Exhibits 10-21) introduced into evidence confirm that Employee had a prior
L5/S I disc herniation in 2011, and that received epidural blocks on March 19, 2012 (Ex. 15). A June
2 7, 2014, record of Dr. Ki Chang (Ex. 21 ), dated approximately one month before this alleged work
injury, indicates that he saw Employee who was complaining of low back pain.

       The parties stipulated that Employee's Average Weekly Wage (A WW) is $596.97, and his
weekly Compensation Rate (CR) is $397.98.

                                     Employee's Contentions

       Employee contends that he sustained a low back injury that arose primarily out of and in the

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course and scope of employment with Employer when he was lifting boxes and loading containers on
a slide on July 31, 2014. Employee contends that Employer/Carrier should provide temporary
disability benefits and additional medical benefits.

                                      Employer's Contentions

       Employer/Carrier disputes the compensability of Employee's injury on the basis that it does
not qualify as an "injury" as contemplated by Tennessee Code Annotated section 50-6-102(12).
Specifically, there is no objective evidence that Employee suffered either an anatomical aggravation
or a new injury, either of which arose primarily out of the course and scope of his employment.
Employer also alleges that the credibility of Employee's claim of injury is suspect because he has
given different dates of injury and different mechanisms of injury. Also, Employee's claim of injury
was only made a week later in response to being told that his work performance was unsatisfactory.


                            Findings of Fact and Conclusions of Law

                                              Standard Applied

         When determining whether to award benefits, the Judge must decide whether the moving
party is likely to succeed on the merits at trial given the information available. See generally, McCall
v. Nat'! Health Care Corp., 100 S.W. 3d 209,214 (Tenn. 2003). In a workers' compensation action,
pursuant to Tennessee Code Annotated section 50-6-239(c)(6), Employee shall bear the burden of
proving each and every element of the claim by a preponderance of the evidence. Employee must
show that the injury arose primarily out of and in the course and scope of employment. Tenn. Code
Ann.§ 50-6-102(13)(2014).

                                              Factual Findings

        Considering all admissible evidence, including the medical records, the testimony of
Employee, and the testimony of Employee's supervisor, the Court finds that Employee had been seen
by Dr. Chang on June 27, 2014, complaining of low back pain. This may or may not have been
related to Employee's earlier lumbar disc herniation in 2011, but it shows that Employee was
complaining of low back pain approximately one month before his alleged low back injury at work
on July 31, 2014. An authorized panel physician, Dr. Parsioon, opined that Employee's back pain
was work related, but he did not opine that it arose primarily out of employment. There was no
indication in Dr. Parsioon' s records that he was aware Employee had complained oflow back pain to
Dr. Chang on June 27, 2014.

                                        Application of Law to Facts

       1.      Employee failed to prove that he sustained an injury that arose primarily out of
            and in the course and scope of employment with Employer.




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        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. § 50-6-1 02(13)
(20 14). An injury means "an injury by accident ... arising primarily out of and in the course and
scope of employment, that causes death, disablement or the need for medical treatment of the
employee." !d. 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, and shall not include the aggravation of a preexisting disease,
condition or ailment unless it can be shown to a reasonable degree of medical certainty that the
aggravation arose primarily out of and in the course and scope of employment." Tenn. Code Ann. §
50-6-102(13)(A) (2014).

         An injury is deemed to arise 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( 13 )(B) (20 14). Further, "[a]n injury causes death, disablement or the need for medical treatment
only if it has been shown to a reasonable degree of medical certainty that it contributed more than
fifty percent (50%) in causing the death, disablement or need for medical treatment, considering all
causes." Tenn. Code Ann. § 50-6-1 02(13)(C)(2014). An injury is shown to a reasonable degree of
medical certainty if "in the opinion of the physician, it is more likely than not considering all causes,
as opposed to speculation or possibility." Tenn. Code Ann.§ 50-6-102(13)(D) (2014). "The opinion
of the treating physician, selected by the employee from the employer's designated panel of
physicians ... 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(13)(E) (2014). The
employee b e a r s the "burden of proving each and every element of the claim by a
preponderance of the evidence." Tenn. Code Ann.§ 50-6-239(c)(6) (2014).

        Traditionally, courts have held that the statutory requirements that an injury arise out of and
in the course of the employment are not synonymous "although both elements exist to ensure a work
connection to the injury for which the employee seeks benefits." Blankenship v. Am. Ordnance Sys.,
164 S.W.3d 350, 354 (Tenn. 2005). An injury occurs in the course of employment if it takes place
while the employee was performing a duty he or she was employed to perform. Fink v. Caudle, 856
S. W.2d 952, 958 (Tenn. Workers' Comp. Panel1993). Thus, the course of employment requirement
focuses on the time, place, and circumstances ofthe injury. Saylor v. Lakeway Trucking, Inc., 181
S.W.3d 314,318 (Tenn. 2005).

         In contrast, arising out of employment refers to causation. Reeser v. Yellow Freight Sys.,
Inc., 938 S.W.2d 690,692 (Tenn. 1997). An injury arises out of employment when there is a causal
connection between the conditions under which the work is required to be performed and the
resulting injury. Fritts v. Safety Nat'! Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005). Put another
way, the element of causation is satisfied when the "injury has a rational, causal connection to the
work." Braden v. Sears, Roebuck & Co., 833 S.W.2d 496,498 (Tenn. 1992). The mere presence of
the employee at the place of injury because of the employment is not enough, as the injury must
result from a hazard peculiar to the work or be caused by a risk inherent in the nature of the work.
Blankenship, 164 S.W.3d at 354. Accordingly, "an injury purely coincidental, or contemporaneous,



                                                   6
or collateral, with the employment ... will not cause the injury ... to be considered as arising out of
the employment." Jackson v. Clark & Fay, Inc., 270 S.W.2d 389, 390 (Tenn. 1954).

        Applying these principles to this case, it is the finding of the Court that Employee does have
low back pain, but there is insufficient proof that it arose primarily out of and in the course and scope
of employment. This finding is based on both factual and medical grounds. Employee had a prior
low back injury in 2011, and had complained of back pain to Dr. Chang only one month prior to his
alleged date of injury. Employee did not complain of a work injury on July 31, 2014, and only later
reported his alleged injury in response to being told by a supervisor that his work performance was
unsatisfactory. Furthermore, no physician has opined that Employee's alleged back injury arose
primarily out of and in the course and scope of employment. Therefore, it is the ruling of the Court
that Employee has failed to establish that he sustained a compensable work-related injury.

        2.      Employer is not obligated to provide temporary disability benefits or medical
             benefits.

       Employee has failed to prove that he sustained a compensable work-related injury.
Therefore, Employer/Carrier is not obligated to provide medical or temporary disability benefits.

       IT IS, THEREFORE, ORDERED THAT:

             1) Employee's interlocutory request in this Expedited Hearing for temporary disability
                benefits and medical benefits is denied at this time on the grounds that Employee has
                failed to prove that he sustained an injury by accident arising primarily out of and in
                the course and scope of employment. This is not a Final Order.

             2) This matter is set for Initial Hearing on December 17, 2014 at 9 a.m.


       ENTERED this the 8th day of December, 2014.


                                              c:~~ 4_d}
                                                Jim Umsted, Judge
                                                Court of Workers' Compensation Claims




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 Request for Appeal, you must:

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

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       2. File the completed form with the Court Clerk within seven (7) business days of the date the
          Expedited Hearing Order was entered by the Workers' Compensation Judge.

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

       4. 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 ofhaving a transcript
          prepared by a licensed court reporter and filing it with the Court Clerk within ten (1 0)
          calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the
          parties may file a statement ofthe evidence within ten (10) calendar days ofthe filing ofthe
          Expedited Hearing Notice of Appeal. The statement of the evidence must be approved by the
          Judge before the record is submitted to the Clerk ofthe Appeals Board.

       5. If the appellant elects to file a position statement in support of the interlocutory appeal, the
          appealing party shall file such position statement with the Court Clerk within three (3)
          business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues
          presented for review and including any argument in support thereof. If the appellee elects to
          file a response in opposition to the interlocutory appeal, appellee shall do so within three (3)
          business days of the filing of the appellant's position statement.


                                     CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the
 following recipients by the following methods of service on this the gth day of December, 2014.


Name                     Certified   First     Via    Fax        Via      Email Address
                         Mail        Class     Fax    Number     Email
                                     Mail
Jimmy Cooper,            X                                        X       Jimmie7cp@aol.com
Employee
Jonathan May,                                                    X        j may@lewisthomason.com
Employer's attorney


                                                         <-_;;k ,'L#
                                                          Jim Umsted, Judge
                                                          Court of Workers' Compensation Claims




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