     FILED
   Feb 22, 2019
   01:33 PM(ET)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
Dr. Wallace also offered him an injection for his left knee, but he declined due to
potential side effects and because he thought he should have an MRJ. Dr. Wallace noted,
"I told him if his knee did continue to be an issue for him that we could always refer him
to one of our knee specialists." On January 15, 2018, Dr. Wallace released him to return
to work without restrictions and assigned a rating of 2% for the femur fracture.

       Mr. Lloyd testified that, from the time of the injury to the present, he has suffered
from back, neck, and bilateral knee pain. He said he repeatedly reported these pains to
his medical providers but acknowledged there was no reference to these complaints in the
records. When Mr. Lloyd requested evaluation for his back and neck, American Timber
questioned Dr. Wallace about the cause of his symptoms. It asked:

       Given the lack of complaints related to the back or neck in the
       aforementioned medical records, can you state to a reasonable degree of
       medical certainty that Mr. Lloyd's employment and/or work injury with
       American Timber primarily caused Mr. Lloyd's current neck and back
       symptoms, that is, did his work-related accident contribute more than 50%
       in causing the injury, considering all possible causes?

She responded, "No. It is possible that he suffered whiplash or other soft tissue injury at
the time but I cannot state this with great certainty."

       Mr. Lloyd obtained an independent medical evaluation with Dr. C.M. Salekin,
who prepared a form C-32 report. In that report, Dr. Salekin listed the injuries as "femur
fracture, both knee injury [sic], and damage to abdominal wall." Regarding the knee
complaints, Dr. Salekin believed Mr. Lloyd suffered from work-related arthropathy in
both knees; however, he needed MRls of both knees for appropriate diagnosis and
treatment. His report and C-32 did not mention Mr. Lloyd's back or neck complaints.

                       Findings of Fact and Conclusions of Law

       Mr. Lloyd need not prove every element of his claim by a preponderance of the
evidence in order to obtain relief at an expedited hearing. Instead, he must present
sufficient evidence demonstrating that he is likely to prevail at a hearing on the merits.
See Tenn. Code Ann. § 50-6-239(d)(l) (2018); McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       To prove a compensable injury, Mr. Lloyd must show that his alleged back, neck,
and knee injuries arose primarily out of and in the course and scope of his employment.
He must show, "to a reasonable degree of medical certainty that [the incident] contributed
more than fifty percent (50%) in causing the . . . disablement or need for medical
treatment, considering all causes." "Shown to a reasonable degree of medical certainty"
means that, in the opinion of the treating physicfan, it is more likely than not considering

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all causes as opposed to speculation or possibility. See Tenn. Code Ann. § 50-6-102(14).
"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(14)(E).

        Applying these principles to the facts of this case, the Court concludes that Mr.
Lloyd failed to establish he is likely to prove at trial that his back, neck, and right-knee
conditions were related to the work injury. Not only were complaints of back, neck, and
right-knee pain absent from the medical records, but also Dr. Wallace's operative note
stated, "He denies any other injuries other than his abdomen and his left side." Mr. Lloyd
argued he told Dr. Wallace about his other complaints, but she did not include them in
her records because she was solely focused on his left-femur injury. However, when Mr.
Lloyd mentioned left-knee pain five months after the injury, Dr. Wallace noted it and
offered physical therapy and injections. In fact, Dr. Wallace indicated that if his left knee
continued to be painful, she could refer him to a knee specialist in her group.

       As the authorized, panel-selected physician, Dr. Wallace's causation opinion is
presumed correct. When asked whether she could state within a reasonable degree of
medical certainty that Mr. Lloyd's work injury caused his current back and neck
symptoms, Dr. Wallace said "no." She went on to state that it was possible he suffered
whiplash or other soft-tissue injury at the time, but she could not say so with great
certainty. Mr. Lloyd suggested Dr. Wallace made that comment because he had
complained about his back and neck previously. However, the Court declines to engage
in speculation. See Lurz v. Int'! Paper Co., 2018 TN Wrk. Comp. App. Bd. LEXIS 8, at
*17 (Feb. 14, 2018) ("[P]arties and their lawyers cannot rely solely on their own medical
interpretations of the evidence to successfully support their arguments.").

        Mr. Lloyd offered Dr. Salekin's C-32 report and medical record to support his
position. On the C-32, Dr. Salekin listed "the injury" as "femur fracture, both knee injury
[sic], and damage to abdominal wall." His report did not mention Mr. Lloyd's back or
neck complaints. Dr. Salekin referenced Mr. Lloyd's prior right-knee injury and a
worsening of that condition following the work injury but stated Mr. Lloyd needs an MRI
of both knees for proper diagnosis and treatment. The Court concludes Mr. Lloyd failed
to establish likelihood of success at trial that his back, neck, and right-knee conditions
arose primarily from the work injury.

       Regarding Mr. Lloyd's left knee, the medical records reflect that he complained of
left-knee pain to Dr. Wallace and attended some physical therapy for it. She also offered
him injections, which he declined, and mentioned a possible, referral to a knee specialist.
Tennessee Code Annotated subsection 50-6-204(a)(l)(A) provides that an employer shall
furnish medical treatment made reasonable necessary by the work injury. The Court
holds that Mr. Lloyd established he is likely to prove entitlement to reasonable,

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necessary, and causally-related treatment for his left knee with Dr. Wallace. American
Timber shall authorize an appointment with Dr. Wallace for evaluation of Mr. Lloyd's
current left-knee symptoms.

       In conclusion, the Court grants Mr. Lloyd's request for medical benefits for his
left knee but denies his request for back, neck, and right-knee treatment.

IT IS, THEREFORE, ORDERED as follows:

   1. Reasonable, necessary, and causally-related medical care for Mr. Lloyd's left
      femur, hernia, and left-knee injuries shall be provided by American Timber or its
      workers' compensation carrier.

   2. Mr. Lloyd's claim against American Timber and its workers' compensation carrier
      for his alleged back, neck, and right-knee injuries is denied at this time.

   3. This matter is set for a Status Conference on June 17, 2019, at 9:30 a.m. Eastern
      Time.     The parties must call 865-594-0109 or 855-383-0003 toll-free to
      participate. Failure to appear by telephone may result in a determination of the
      issues without the party's participation.

   4. 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).
      The Insurer or Self-Insured Employer must submit confirmation of compliance
      with this Order to the Bureau by email to WC ompliance.Pr gram@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. For questions regarding compliance, please
      contact the Workers' Compensation Compliance Unit via email at
      WCCompliance.Program@tn.gov.

      ENTERED February 22, 2019.




                                  LISA A. LOWE, JUDGE
                                  Court of Workers' Compensation Claims




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                                         APPENDIX

Technical Record:
          1. Petition for Benefit Determination
          2. Dispute Certification Notice
          3. Plaintiffs Notice of Intent to Use Statement of Evaluating Physician in
             Lieu of Deposition
          4. Request for Expedited Hearing
          5. Brief in Support of Employee's Request for Expedited Hearing
          6. Employer/Carrier's Objection to Plaintiff/Employee's Use of Standard
             Form Medical Report for Industrial Injuries (Form C-32) of Choudhury M.
             Salekin
          7. Employer's Objection to Employee's Request for Expedited Hearing Being
             Decided on the Record
          8. Pre-Hearing Brief of Employer and Insurer
          9. Supplement to Pre-Hearing Brief of Employer and Insurer

       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.

Exh ibits :
              1.   Affidavit of Ronnie Lloyd
              2.   Panel of Physician, Form C-42, Selection Date of June 16, 2017
              3.   Panel of Physician, Form C-42, Selection Date of June 20, 2017
              4.   Medical Records of Dr. Anna Wallace and University of Tennessee
                   Medical Center
              5.   Supplemental records of OrthoTennessee
              6.   Causation Letter to Dr. Anna Wallace, dated July 11, 2017,
              7.   C-32 and medical report of Dr. C.M. Salekin
              8.   E-mail exchanges between the parties, dated June 28, 2017 (marked for
                   identification purposes only)




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                           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 February 22,
2019.

         Name             Certified   Fax       Email   Service sent to:
                           Mail
Ameesh Kherani,                                  x      akherani@davidhdunaway.com
Employee's Attorney

Fredrick R. Baker,                               x      fbaker@wimberlylawson.com
Employer's Attorney




                                                   UM, Court Clerk
                                        WC.Coor Clerk@tn.gov




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