                                                                                         FILED
                                                                                    December 16, 2015
                                                                                      TICOURT OF
                                                                                  WORKIRS' CO)IPE:\"SATIO:\"
                                                                                         CLADIS

                                                                                        Time : 11:50 A.l\'1




           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT JACKSON

BRADLEY WILSON                               )   Docket No.: 2015-07-0143
        Employee,                            )
v.                                           )   State File Number: 50922-2015
DANA HOLDING CORP.                           )
        Employer.                            )   Judge Amber E. Luttrell
                                             )

   EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS AND
           DENYING TEMPORARY DISABILITY BENEFITS


        This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the employee, Bradley Wilson, pursuant to
Tennessee Code Annotated section 50-6-239 (2014). The present focus ofthis case is the
compensability of Mr. Wilson's bilateral carpal tunnel syndrome claim and his
entitlement to medical benefits and temporary disability benefits. The central legal issues
are whether Mr. Wilson is likely to prevail at a hearing on the merits regarding whether
his injury arose primarily out of and in the course and scope of his employment and if
Mr. Wilson gave proper notice of a work injury. For the reasons set forth below, the
Court finds Mr. Wilson carried his burden of proof, Mr. Wilson demonstrated that he
gave legally-sufficient notice and is entitled to medical benefits for his bilateral carpal
tunnel syndrome, but he is not entitled temporary disability benefits at this time.

                                    History of Claim

       Mr. Wilson is a thirty-year-old resident of Benton County, Tennessee. (T.R. 1.) He
worked as a press operator for Dana Holding Corporation (Dana) in Paris, Tennessee.
(Ex. 1.) Mr. Wilson testified he worked on a production line assembling oil coolers. As a
press operator, he performed the same tasks repetitively, often for eleven hours a day.
(Ex. 1.) He regularly used a hammer to remove pieces off a fixture during the assembly
process. Mr. Wilson testified he worked five to seven days almost every week. He
described his work as highly repetitive and stated those duties and his extensive work
hours each week caused his carpal tunnel syndrome. Mr. Wilson testified he began



                                            1
"having issues" around February 14. 1 He took intermittent FMLA leave while seeing
physicians and undergoing physical therapy. Mr. Wilson stated his physicians did not
know the cause of his issues. 2

       According to the medical records, Mr. Wilson sought treatment with his family
physician, Dr. Ken Berry, beginning April 14, 2015. (Ex. 4.) He reported symptoms of
pain in his shoulders, joints, and numbness and tingling in his bilateral finger tips. Dr.
Berry noted Mr. Wilson had physical therapy in the past and his issues began a couple of
years prior to the visit. Following an exam, Dr. Berry diagnosed shoulder pain and
tingling in the bilateral hands and fingers. He also ordered an MRI of both shoulders. Dr.
Berry then referred Mr. Wilson to an orthopedist, Dr. Blake Chandler, for further
evaluation.

        Mr. Wilson saw Clay Nolen, FNP-BC of West Tennessee Bone and Joint (WTBJ)
on April 30, 2015, for further evaluation of his shoulder complaints. Id. Mr. Wilson
complained of shoulder pain, weakness, and numbness and tingling down into his
forearms and fingertips. Mr. Wilson denied injury or trauma. He reported that his
symptoms increased with reaching overhead. Mr. Nolen reviewed the shoulder MRI
results and noted a normal left shoulder and possible AC joint inflammation in the right
shoulder. Mr. Nolen ordered an EMG/NCS of both arms, which showed moderate to
moderately severe median neuropathy at both wrists. !d.

      Mr. Wilson returned to WTBJ on May 13, 2015, and saw Dr. Blake Chandler. Id.
He reported difficulty sleeping and increased symptoms after repetitive motion.
Following physical exam and review of the EMG/NCS, Dr. Chandler diagnosed
moderately severe bilateral carpal tunnel syndrome and recommended a wrist splint.

       Mr. Wilson provided notice to Dana of his alleged work injury by letter dated June
4, 2015. (Ex. 7.) In the letter, Mr. Wilson advised Dana of his carpal tunnel syndrome
diagnosis, requested a panel of physicians, and requested to file a workers' compensation
claim. He also sent an email the next day on June 5, 2015, to Ms. Andrea Gooch, Human
Resources Manager for Dana, reporting the injury and requesting a panel of physicians.
Id. Dana never offered Mr. Wilson a panel. Instead, on July 2, 2015, Dana denied the
claim, stating the basis as "late reporting and no report of an accident." (Ex. 6.)

       In support of its notice defense, Dana submitted affidavits of Mr. Wilson's
supervisors, the maintenance manager, and the health and safety manager. (Ex. 3.)
Dana's representatives consistently stated that Mr. Wilson never reported to them any
work injury or carpal tunnel-related problems during his employment with Dana. They

1
  In the context of the proof offered at the Expedited Hearing, the Court interpreted Mr. Wilson's
testimony to mean he had symptoms dating back to February 2014.
2
  Mr. Wilson did not identify the physician he saw initially.

                                                2
further stated that Mr. Wilson never asked for assistance or accommodation with his job
duties due to hand complaints or any medical condition related to his employment. Mr.
Wilson's June 4, 2015 letter was Dana's first notice of his alleged work injury. Id.

       Concerning medical causation, Mr. Wilson offered into evidence a letter dated
July 30, 2015, from Dr. Berry, where he stated:

       Mr. Wilson has been a patient of mine for quite some time and we saw him
       in the clinic on May 14, 2015 with shoulder and arm pain with tingling in
       fingers and arms. We sent him for an MRI and then referred him to Dr.
       Chandler in Paris. Dr. Chandler ran an EMG and diagnosed him with
       moderate to severe bi-lateral carpal tunnel. I am well aware of Mr. Wilson's
       work and I believe that his current condition is definitely work related.

(Ex. 4.) Mr. Wilson also introduced a sworn affidavit from Dr. Berry where he stated, "It
is my professional opinion, considering Mr. Bradley Wilson's past medical and work
history, that his most recent employment as a Press Operator for Dana Corporation; [sic]
is the sole cause for his severe bi-lateral carpal tunnel." (Ex. 2.) Mr. Wilson testified both
Dr. Berry and Dr. Bingham told him that his carpal tunnel had to be related to his work,
based upon his work schedule and lack of any repetitive hobbies outside of work.

       Dana presented a causation letter from Dr. Chandler stating, "I cannot say with
any medical certainty that the bilateral carpal tunnel syndrome is more than 50% caused
by [h]is work." (Ex. 10.)

       While seeking medical treatment in 2015, Mr. Wilson took FMLA leave from
April 14, 2015, through April 29, 2015. Id. Dr. Berry provided an off-work note stating
Mr. Wilson could return to work on April 29, 2015. When Mr. Wilson did not return to
work, Dana terminated him on May 1, 2015.

       Ms. Gooch testified by affidavit that Dana terminated Mr. Wilson from his
employment on May 1, 2015, for job abandonment after he violated the company's three
days "no call-no show" attendance policy. (Ex. 3.) Mr. Wilson testified he did not return
to work because his FMLA leave was extended through May 13, 2015. Id. However, Mr.
Wilson conceded that he did not receive the letter notifying him of his extended FMLA
leave until sometime after his termination date.

        Mr. Wilson filed a Petition for Benefit Determination seeking medical benefits.
(T.R. 1.) The parties did not resolve the disputed issues through mediation, and the
Mediating Specialist filed a Dispute Certification Notice adding a request for temporary
disability benefits. (T.R. 2.) Mr. Wilson filed a Request for Expedited Hearing (T.R. 3.),
and this Court heard the matter on December 3, 2015.


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                       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 (2014). The employee in a workers' compensation claim
has the burden of proof on all essential elements of a claim. Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element
of his or her claim by a preponderance of the evidence in order to obtain relief at an
expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27,
20 15). At an expedited hearing, an employee has the burden to 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. !d. 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 v. Car/ex Glass Co., No. 2015-01-0012,
2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept.
29, 2015).

                                          Notice

      Dana contends Mr. Wilson failed to give proper notice of his alleged work injury.
Dana submits that carpal tunnel syndrome is a gradually-occurring injury where notice
must be given pursuant to Tennessee Code Annotated section 50-6-201(b) (2014).

      Section 50-6-201(b) provides:

      In those cases where the injuries occur as the result of gradual or
      cumulative events or trauma, then the injured employee or the injured
      employee's representative shall provide notice of the injury to the employer
      within thirty (30) days after the employee:
      (1) Knows or reasonably should know that the employee has suffered a
      work-related injury that has resulted in permanent physical impairment; or
      (2) Is rendered unable to continue to perform the employee's normal work
      activities as the result of the work-related injury and the employee knows or
      reasonably should know that the injury was caused by work-related
      activities.

!d.


                                            4
         Thus, in gradually-occurring injuries, employees are relieved from the notice
requirement until they know or reasonably should know that their work caused their
injury and that the injury either impaired them permanently or prevented them from
performing normal work activities. Banks v. United Parcel Serv., Inc., 170 S.W.3d 556,
561 (Tenn. 2005). Additionally, an employee may be unsure of the cause of his injury
and therefore relieved of the notice requirement until a physician confirms the diagnosis.
!d. (citing Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d 164, 169 (Tenn. 2002)).

       In this case, Dana contends Mr. Wilson knew or should have known he suffered a
work-related injury before June 4, 2015, the date he gave notice. Mr. Wilson testified he
had similar symptoms for approximately two years before he saw Dr. Chandler. Dr.
Berry's April 24, 2015 correspondence, supporting Mr. Wilson's FMLA leave, indicated
his familiarity with Mr. Wilson's job duties at Dana, and he opined the job might
exacerbate his symptoms. However, Dana concedes Dr. Berry did not causally relate Mr.
Wilson's condition to his work at that time. (Ex. 4.)

        While it is true Mr. Wilson had symptoms in his shoulders going down into his
hands and fingers for a period of time prior to giving notice on June 4, 2015, the
uncontroverted proof at the hearing indicated Mr. Wilson did not know he had carpal
tunnel syndrome until Dr. Bingham diagnosed the condition on May 8, 2015. Moreover,
Mr. Wilson credibly testified he did not learn from a physician that his work caused his
carpal tunnel syndrome until Dr. Bingham and Dr. Berry causally related it to his work
duties. The earliest medical record causally relating Mr. Wilson's carpal tunnel syndrome
to his work was Dr. Berry's letter dated July 30, 2015, where Dr. Berry stated, "I am
aware of Mr. Wilson's work and I believe that his current condition is definitely work
related."

        In light of these facts and the totality of the evidence, the Court finds Mr. Wilson
gave adequate notice of an injury to Dana within thirty days of his carpal tunnel
syndrome diagnosis and knowledge that it was work-related pursuant to Tennessee Code
Annotated section 50-6-201(b) (2014). The Court further finds the timing of Mr.
Wilson's notice in no way inhibited Dana from timely investigating the facts while they
were still readily accessible. Therefore, as a matter of law, Mr. Wilson came forward with
sufficient evidence from which this Court concludes that he is likely to prevail at a
hearing on the merits on the issue of notice.

                                    Medical Causation

       To be compensable under the workers' compensation statutes, an injury must arise
"primarily out of and in the course and scope of employment[.]" Tenn. Code Ann. § 50-
6-102(13) (2014). 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.

                                             5
       "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(13)(B) (2014). Medical evidence is generally required in
order to establish a causal relationship, "[e]xcept in the most obvious, simple and routine
cases." Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008) (quoting
Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991)).

       Tennessee Code Annotated section 50-6-204(a)(l)(A) (2014) provides that an
employer shall furnish to the employee such medical treatment as is "made reasonably
necessary by accident." ·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 medical opinions before this Court on the issue of causation are the opinions
of Dr. Berry and Dr. Chandler. Since neither doctor was a treating physician from a
panel of physicians, neither opinion carries any statutory presumption of correctness.
Dana relies upon the opinion of Dr. Chandler, an orthopedic physician, who stated, "I
cannot say with any medical certainty that the bilateral carpal tunnel syndrome is more
than 50% caused by [h]is work." (Ex. 10.) Mr. Wilson relies upon the opinion of his
family physician, Dr. Berry, who testified by affidavit and stated, "It is my professional
opinion, considering Mr. Bradley Wilson's past medical and work history, that his most
recent employment as a Press Operator for Dana Corporation; [sic] is the sole cause for
his severe bi-lateral carpal tunnel." (Ex. 2.)

       In weighing these conflicting causation opinions, the Court finds it significant that
Dr. Chandler's causation letter fails to state any basis for his opinion that Mr. Wilson's
carpal tunnel is not more than fifty percent caused by his work. Moreover, neither Dr.
Chandler's causation letter nor his records indicate he was aware of Mr. Wilson's job
position at Dana or his work duties. In contrast, Dr. Berry asserted in his causation letters
and his affidavit that he is familiar with Mr. Wilson's job at Dana and his duties as a
press operator. Dr. Berry further stated he is also aware of Mr. Wilson's medical history
as his family physician. Based upon this knowledge, he unequivocally opined that Mr.
Wilson's work as a press operator at Dana was the sole cause for his severe bilateral
carpal tunnel.

       Upon thorough consideration of these medical opinions and the totality of the
medical proof, the Court finds Dr. Berry's causation opinion more persuasive. Thus, the
Court finds Mr. Wilson presented sufficient proof from which the Court concludes he is
likely to prevail at a hearing on the merits on the issue of medical causation and,
therefore, is entitled to medical benefits for his carpal tunnel syndrome.

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       Mr. Wilson submitted medical bills from several providers for dates of service
prior to June 4, 2015, when he first gave notice of a work injury to Dana. (Ex. 5.) Mr.
Wilson also submitted a mileage reimbursement request for visits to physicians in April
and May 2015. (Ex. 9.) Pursuant to Tennessee Code Annotated section 50-6-201 (2014),
no compensation shall be paid until notice is given of a work injury. Accordingly, the
Court finds that Mr. Wilson has not established that he is likely to prevail at a hearing on
the merits regarding the payment of his past medical bills or mileage prior to June 4,
2015.

                              Temporary Disability Benefits

       To establish entitlement to temporary total disability benefits as contemplated in
Tennessee Code Annotated section 50-6-207(1) (2014), an employee must show that (1)
he or she was totally disabled from work as a result of a compensable injury; (2) that a
causal connection exists between the injury and the employee's inability to work; and (3)
the duration of the period of the employee's disability. Jewell v. Cobble Construction
and Arcus Restoration, No. 2014-05-0003, 2015 TN Wrk. Camp. App. Bd. LEXIS 1, at
*21 (Tenn. Workers' Camp. App. Bd. Jan. 12, 2015).

       Temporary partial disability (TPD) refers to the time when the injured employee is
able to resume some gainful employment but has not yet reached maximum recovery.
Williams v. Saturn Corp., No. M2004-0 1215-WC-R3-CV, 2005 Tenn. LEXIS 1032, at *3
(Tenn. Workers' Camp. Panel Nov. 15, 2005). As with TTD, there must be adequate
proof of a causal connection between the injury and the disability for an award ofTPD.

      Dana contends Mr. Wilson is not entitled to any temporary disability benefits for
which he may qualify in this case because of his termination for cause for violation of
Dana's attendance policy.

       The Court finds there is insufficient medical evidence to establish that Mr.
Wilson's physicians took him off work or provided temporary work restrictions after
June 4, 2015, when Mr. Wilson first gave notice to Dana of his work injury. Therefore,
Mr. Wilson has not introduced sufficient evidence from which this Court can conclude
that he is likely to prevail at a hearing on the merits on the issue of temporary disability
benefits. In light of this finding, Dana's argument concerning Mr. Wilson's termination
for cause need not be addressed at this time.




                                             7
IT IS, THEREFORE, ORDERED as follows:

    1. Dana or its workers' compensation carrier shall provide Mr. Wilson with medical
       treatment for his bilateral carpal tunnel injury as required by Tennessee Code
       Annotated section 50-6-204 (2014), to be initiated by Dana or its workers'
       compensation carrier providing Mr. Wilson with a panel of physicians as required
       by statute. Medical bills shall be furnished to Dana or its workers' compensation
       carrier by Mr. Wilson or the medical providers.

   2. Mr. Wilson's claim for payment of past medical bills and mileage is denied.

   3. Mr. Wilson's claim for temporary disability benefits is denied at this time.

   4. This matter is set for an Initial (Scheduling) Hearing on March 3, 2016, at 10 a.m.

   5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
      with this Order must occur no later than seven business ·days from the date of entry
      of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
      (2014). The Insurer or Self-Insured Employer must submit confirmation of
      compliance      with    this     Order    to   the    Bureau      by    email     to
      WCCompliance.Program@tn.gov no later than the seventh business day after
      entry of this Order. Failure to submit the necessary confirmation within the period
      of compliance may result in a penalty assessment for non-compliance.

   6. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
      253-1471 or (615) 532-1309.

       ENTERED this the 16th day     o~22~


                                  Judge Amber E. Luttrell
                                  Court of Workers' Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Luttrell, Court of
Workers' Compensation Claims. You must call 901-543-2668 or toll-free at 855-
543-5046 to participate in the Initial Hearing.

       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

                                            8
your further participation.

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
      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

                                            9
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.




                                     10
                                               APPENDIX

Exhibits:
   1. Affidavit of Bradley Wilson
   2. Affidavit of Dr. Ken Berry
   3. Affidavits of Dana employees:
           a. Jason Almand
           b. Keith Henegar
           c. Dale Jeansonne
           d. Brian Ward
           e. Andrea Gooch
   4. Medical records of the following:
           a. Dr. Ken Berry
           b. Henry County Medical Center
           c. Dr. Ronald Bingham
           d. Dr. Blake Chandler
   5. Medical bills
   6. Notice ofDenial of Claim
   7. Mr. Wilson's notice ofwork injury
   8. Wage Statement
  9. Mileage Reimbursement Form
   10. Dr. Chandler's causation opinion
   11. Careworks Absence Management FMLA letters


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




3
   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.




                                                     11
                            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 16th day
ofDecember, 2015.


Name                        Certified Via        Via     Service sent to:
                            Mail      Fax        Email
Bradley Wilson,                 X                  X     93 5 Chalk Hill Church Rd.
Employee                                                 Camden, Tennessee 38320
                                                         Bwoldschool65@yahoo.com
Terri Bernal, Esq.                                X      tbemal@wimberlylawson.com;
Employer's Counsel                                       jgreen@wimberlvlawson.corn




                                        Penny Sh u n, Clerk of Court
                                        Court of ~ \Po rkers' Compensation Claims
                                        WC.CourtCierk@tn.gov




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