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

MICHAEL PERSON,                                      )   Docket No. 2017-08-0407
          Employee,                                  )
v.                                                   )
GUARDIAN INDUSTRIES                                  )   State File No. 24035-2014
CORPORATION,                                         )
          Employer,                                  )
And                                                  )
ESIS SOUTHWEST WC CLAIMS,                            )   Judge Deana C. Seymour
         Carrier.                                    )


        EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS
                    (DECISION ON THE RECORD)


        This case came before the Court on September 25, 2018, on Mr. Person’s Request
for Expedited Hearing seeking an on-the-record determination. 1 The present focus of this
case is whether Mr. Person is likely to prevail at a hearing on the merits in establishing
entitlement to additional medical benefits. 2 For the reasons below, the Court holds he
failed to satisfy his burden of proof and denies the requested benefits.

                                          History of Claim

       On July 27, 2016, Mr. Person lifted a fifty-pound pump from a pit while working
for Guardian Industries and felt a pull on the right side of his neck with pain radiating
into his right shoulder, arm, and hand. He received authorized medical care from
neurosurgeon Dr. John Brophy.

1
 This Court needed no additional information to determine whether Mr. Person is likely to prevail at a
hearing on the merits. The Court’s September 13 docketing notice listed the contents of the file and gave
both parties seven business days to either object to the Court considering any of the documents and/or file
position papers. Neither party filed evidentiary objections or additional arguments.
2
 The DCN also listed temporary disability benefits, but the parties neither argued nor presented evidence
on that issue. The Court considers the issue waived at this time.
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        Dr. Brophy took Mr. Person’s history, examined him, and reviewed his recent
cervical MRI. The MRI revealed pre-existing cervical spondylosis with radiculopathy.
Dr. Brophy gave Mr. Person treatment options of physical therapy or steroid injections.
Should that treatment fail, he indicated he would consider surgery. Dr. Brophy ultimately
told Mr. Person that his pre-existing spondylosis caused “more than fifty-one percent” of
his ongoing symptoms, so his personal health insurance should handle further treatment
costs. He released Mr. Person at maximum medical improvement (MMI) without
restrictions on October 24. Based on Dr. Brophy’s causation opinion, Guardian denied
the claim as non-work-related.

       Dr. Brophy’s causation opinion prompted Mr. Person’s counsel to send a letter to
him with causation questions. Dr. Brophy responded that the work injury “more likely
than not” caused an aggravation of his asymptomatic pre-existing condition” and that his
treatment “thus far” was “reasonable, necessary and causally connected to the
aggravation or exacerbation of the pathology.”

      Guardian’s adjuster sent additional causation questions to Dr. Brophy. He
answered that Mr. Person’s current complaints of cervical radiculopathy were greater
than fifty-one percent associated to his pre-existing spondylosis and degenerative
changes. Further, Mr. Person reached MMI for his work injury and did not need further
medical treatment. He assigned no impairment.

       The parties deposed Dr. Brophy to clarify his causation opinion. He explained,
“the pre-existing spondylosis at C-4, C5-6 and C7 is more than 51 percent of the etiology
of his ongoing symptoms, and, therefore treatment with an injection or surgery would be
more appropriately handled through his personal insurance.”

      Mr. Person filed a Petition for Benefit Determination requesting additional
medical treatment for his work injury. He later requested an Expedited Hearing.

       Mr. Person relied on the Appeals Board’s decision in Vercek v YRC, Inc., 2017 TN
Wrk. Comp. App. Bd. LEXIS 39 (June 6, 2017) to argue his entitlement to medical
treatment for his ongoing symptoms. He contended the work injury caused symptoms
that he did not have before. Thus, as in Vercek, he was entitled to medical benefits for his
ongoing symptoms.

       Guardian countered that Mr. Person failed to prove he suffered a compensable
aggravation of a pre-existing condition under Tennessee Code Annotated section 50-6-
102(14) (2018). It cited Willis v. All Staff, No. M2016-01143-SC-R3-WC, 2017 Tenn.
LEXIS 455 (Tenn. Workers’ Comp. Panel Aug. 3, 2017). Guardian reasoned that Dr.
Brophy stated several times that Mr. Person’s incident at work was less than 50% of the
cause of his ongoing symptoms and therefore not compensable under the law.

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                       Findings of Fact and Conclusions of Law

       At an Expedited Hearing, Mr. Person “must come forward with sufficient
evidence from which the court can conclude 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 *9 (Mar. 27, 2015). He need not prove every element of his claim by a
preponderance of the evidence at this interlocutory stage. Id.

       An aggravation of a pre-existing condition is a compensable injury when “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(14)(A).
The Workers’ Compensation Appeals Board previously held:

      [A]n employee can satisfy the burden of proving a compensable
      aggravation if: (1) there is expert medical proof that the work accident
      contributed more than fifty percent (50%)’ in causing the aggravation, and
      (2) the work accident was the cause of the aggravation more likely than not
      considering all causes.

Miller v. Lowe’s Home Centers, Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 40, at *13
(Oct. 21, 2015) (internal citations omitted).

       Applying these principles, the Court notes that both parties contended Dr.
Brophy’s opinion supports their arguments and selectively cited only the specific sections
of the deposition and records. Neither party suggested a reading of the deposition as a
whole. The Court finds Guardian’s position more persuasive.

       The central theme from the deposition and medical records is that Mr. Person’s
pre-existing spondylosis caused “more than fifty-one percent” of his ongoing symptoms
after MMI. Citing Vercek, Mr. Person contended Dr. Brophy’s opinion satisfied his
burden; specifically, he concluded that his work “‘more likely than not’ caused an
aggravation of his asymptomatic pre-existing condition” and that his treatment “thus far”
was “reasonable, necessary and causally connected to the aggravation or exacerbation of
the pathology.”

        The Court disagrees. In Vercek, the employee claimed a work injury aggravated
his osteoarthritis, making his shoulder symptomatic for the irst time. The ATP concurred
and testified that he suffered an aggravation of a pre-existing condition arising primarily
out of and in the course and scope of his employment, which resulted in the need for
medical treatment. The employee proved entitlement to additional medical benefits
because the ATP directly related the need for additional medical treatment to the work
injury.

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       Unlike Vercek, the injured employee in Willis dislocated his kneecap in a work
incident. His ATP testified that the knee injury “could have” contributed to the injury or
was a “possible” cause of the injury, “in theory.” The Panel held:

      [W]hile that testimony may have been sufficient under prior law, it is
      insufficient under the statutes applicable to this appeal, which state that any
      injury arises out 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 injury, considering all causes.

Willis, 2017 Tenn. LEXIS 455, at *7 (internal citations omitted).

       Here, the Court concludes Mr. Person failed to demonstrate he is likely to prevail
at a hearing on the merits in establishing entitlement to additional medical benefits. Dr.
Brophy related Mr. Person’s present need for medical treatment more to his pre-existing
spondylosis than to the aggravation caused by the work injury. Therefore, the Court
denies his requested benefits.

      IT IS, THEREFORE, ORDERED as follows:

      1. Mr. Person’s request of additional medical benefits is denied.

      2. This matter is set for a Scheduling Hearing on December 10, 2018, at 11:00
         a.m. Central Time. You must call 615-532-9550 or toll-free at 866-943-0014
         to participate. Failure to call may result in a determination of the issues
         without your further participation.

ENTERED October 10, 2018.



                           _____________________________________
                           JUDGE DEANA C. SEYMOUR
                           COURT OF WORKERS’ COMPENSATION CLAIMS




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                                       APPENDIX

 The Court reviewed the entire case file in reaching its decision. Specifically, the Court
 reviewed the following documents, marked as exhibits for ease of reference:

    1.   Petition for Benefit Determination
    2.   Dispute Certification Notice
    3.   Request for Expedited Hearing and Affidavit
    4.   Dr. John D. Brophy’s Deposition Transcript and Deposition Exhibits
    5.   Employee’s Brief on Causation of Claimed Injury
    6.   Employer’s Brief on Causation of Claim Injury.



                             CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Order was sent to the following
 recipients by the following methods of service on October 10, 2018.

Name                          Certified    First    Via    Via   Email Address
                              Mail         Class    Fax    Email
                                           Mail
Jeffrey P. Boyd,                                              X     jboyd@borenandboyd.com
Employee’s Attorney
Bill Walk,                                                    X     bwalk@pcplc.com
Employer’s Attorney




 _______________________________________
 Penny Shrum, Court Clerk
 wc.courtclerk@tn.gov




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