                                                                                                             FILED
                                                                                                      September 20,2016

                                                                                                        TN COURT OF
                                                                                                   W ORKERS' COMPENS_ffiON
                                                                                                           Cl.ARIS

                                                                                                             Time·7 :30PM

              TENNESSEE BUREAU OF WORKERS' COMPENSATION
             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT KINGSPORT

Daniel Kelley,                                           )    Docket No.: 2015-02-0351
             Employee,                                   )
v.                                                       )
Biggies Restaurant,                                      )    State File Number: 76981-2015
             Employer,                                   )
And                                                      )
Ameritrust Insurance Company,                             )   Judge Brian K. Addington
             Insurance Carrier.                           )
                                                          )

                          EXPEDITED HEARING ORDER DENYING
                            REQUESTED MEDICAL BENEFITS


       This matter came before the undersigned Workers' Compensation Judge on
September 14, 2016, on the Request for Expedited Hearing filed by the employee, Daniel
Kelley, under Tennessee Code Annotated section 50-6-239 (20 15).

       The present focus of this case is whether Biggies Restaurant is responsible for
payment of medical benefits. The central legal issue is whether Mr. Kelley suffered an
injury to his lumbar spine that arose prim'lrily out of and in the course and scope of his
employment.' For the reas ns set forlh below, the Court finds Mr. Kelley has not
submitted sufficient evidence from which this Court could conclude he is likely to prevail
at a hearing on the merits on the central legal issue and holds he is not entitled to medical
benefits for his lumber spine at this time.

                                              History of Claim

      Mr. Kelley worked as a maintenance man for Biggies. On August 21, 2015,
Biggies' owner, Robert Runaro, asked Mr. Kelley to perform work at his private


1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an Appendix.
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property. While Mr. Kelley operated a chainsaw, Mr. Runaro moved the log on which
Mr. Kelley stood, causing him to fall. Mr. Kelly suffered a significant cut to his right leg.
(Ex. 3 at 2.)

      Biggies provided emergency medical treatment at Wellmont-Holston Valley
Hospital. Dr. Marc Aiken provided authorized medical treatment for Mr. Kelley's open
wound at the hospital and in follow-up care. (Ex. 6.)

       Once Mr. Kelley began feeling somewhat better from his right leg injury, he
noticed his back hurt. He testified he complained about his back to Dr. Aiken, but Dr.
Aiken did not take his complaints seriously.

       In response, Mr. Kelly sought unauthorized treatment with his primary care
provider, Dr. Bryan Arnette, whom he saw for the first time on October 27, 2015. Mr.
Kelley informed Dr. Arnette that he suffered "problems with his spine and his hip in the
past" and his hip, shoulder, and lumbar spine hurt. (Ex. 4 at 11.) Dr. Arnette ordered an
MRI, which indicated, "[P]atient does have moderate changes in the lumbar spine as well
as central canal stenosis. No need for surgery. But we can refer [him] to pain
management for possible injection therapy." !d. at 8. Dr. Arnette increased the dosage of
pain medication following the MRI. !d. at 2.

       Mr. Kelley continues to treat with Dr. Arnette for back pain. There were no
admitted medical records containing a causation statement from Dr. Arnette concerning
Mr. Kelley's back complaints. Biggies has denied payment for any lumbar spine
treatment.

       Mr. Kelley, who was initially represented by counsel, filed a Petition for Benefit
Determination seeking medical and temporary disability benefits on September 28, 2015.
(T.R. 1 at 1.) The parties did not resolve the disputed issues through mediation, and the
Mediating Specialist filed a Dispute Certification Notice. (T.R. 2.) Mr. Kelley filed a
Request for Expedited Hearing on December 1, 2015, and an amended REH on
December 10, 2015. (T.R. 4 and T.R. 3, respectively.) Later, Mr. Kelley's counsel filed
a Motion to Withdraw as Counsel, which the Court granted on June 30, 2016. (T.R. 5.)
The Court conducted the Expedited Hearing on September 14, 2016.

       At the Expedited Hearing, Mr. Kelley asserted he was entitled to medical benefits
for his lumbar spine. He testified Dr. Aiken ignored his requests for back treatment and


2
    Mr. Kelly often worked at Mr. Runaro's private property.
3
 The Court could not locate any reference to back complaints in Dr. Aiken's notes, and Mr. Kelley did not point to a
specific date he complained to Dr. Aiken.


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that Dr. Arnette opined his back problems relate to his right leg injury. 4 He requested
medical treatment for his back problems.

        Biggies argued that Mr. Kelley had not come forward with sufficient evidence to
find Mr. Kelley's back complaints relate to his right leg injury. It acknowledged for
purposes of the hearing that it had paid and would continue to pay for treatment to Mr.
Kelley's leg, including Dr. Aiken's recent request for an MRI. However, it denied that
medical treatment was necessary for Mr. Kelley's lumbar spine due to his right leg injury.
It also asserted that Dr. Aiken had not referred Mr. Kelley to a spine specialist.

                             Findings of Facts and Conclusions of Law

       As the injured employee seeking benefits, Mr. Kelley has the burden of proof on
all essential elements of his 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). Mr. Kelley need not prove every element of his 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, 2015). However, at an
expedited hearing, he has the burden to come forward with sufficient evidence from
which the trial court can determine that he is likely to prevail at a hearing on the merits.
!d.

       To be compensable under the Workers' Compensation Law, an injury must arise
primarily out of and occur in the course and scope of the employment. Tenn. Code Ann.
§ 50-6-102(14) (20 15). The term "injury" is defined as "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. The law does not
cover aggravations of pre-existing conditions 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(a) (2015). "Shown to a
reasonable degree of medical certainty" means that, 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(d) (201 5).

       From the records admitted, the Court found no documentation to support Mr.
Kelley's testimony that he complained to an authorized provider that his back hurt,
although he testified he complained to Dr. Aiken. Dr. Aiken did not refer Mr. Kelley to a

4
   Mr. Kelley attempted to introduce a collective medical exhibit including a letter from Dr. Arnette dated May 5,
2016. The Court marked the exhibit for identification only and ruled that it would be admitted only if Mr. Kelley
filed it with the Court prior to the hearing. Defense Counsel asserted he had not seen the letter and objected to its
admission. Upon review of the file, the Court could not locate Dr. Arnette's letter. The Court will not consider the
letter in this opinion. The Court considered pages 2-3 of the exhibit.

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spine specialist or request treatment for Mr. Kelley's spine. The records do reflect Mr.
Kelley's general complaint about back pain to Dr. Arnette, his primary care provider,
months after his right leg injury. Even then, Mr. Kelley told Dr. Arnette he suffered
spine problems in the "past." Other than pain management, Dr. Arnette made no
recommendations following a spinal MRI.

        It is unclear from the record whether Mr. Kelley's back pain is due to a pre-
existing injury, an aggravation of his pre-existing condition, or an acute injury, because
there is no medical causation opinion in the records concerning his lumbar spine.

       Except in the most obvious, simple and routine cases, the employee in a workers'
compensation action must establish by expert medical evidence the causal relationship
alluded to between the claimed injury and the employment activity. Orman v. Williams
Sonoma, Inc., 803 S.W.2d 672,676 (Tenn. 1991).

        Because Mr. Kelley failed to provide a causation statement from a physician
linking his back issues with his job at Biggies, the Court finds he has failed to meet the
definition of "injury" according to the law.

        The Court thus holds Mr. Kelley failed to come forward with sufficient evidence
from which the Court could conclude he is likely to prevail at a hearing on the merits that
he suffered a lumbar spine injury arising primarily out of and in the course and scope of
his employment; therefore, his request for medical benefits is denied at this time. Mr.
Kelley may continue to treat for his leg injury with Dr. Aiken.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Kelley's claim against Biggies and its workers' compensation carrier for the
      requested medical benefits for his lumber spine is denied.

   2. This matter is set for Initial (Scheduling) Hearing on November 1, 2016, at 10:00
      a.m. Eastern.

       ENTERED this the 20th day of September, 2016.


                                          &-,_ r{. -J¥?.t-
                                   Judge Brian K. Addington
                                   Court of Workers' Compensation Claims

fnitial (Scheduling) Hearin g:

       A Scheduling Hearing has been set with Judge Brian K. Addington, Court of

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Workers' Compensation Claims.           You must call toll-free at 855-543-5044 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
your further participation. All conferences are set using Eastern Time (ET).


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
      lndigency 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

                                            5
   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
   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.




                                         6
                                              APPENDIX

Exhibits:
   1. Affidavit of Mr. Kelley;
   2. Collective Medical Exhibit ( I st page for Identification Only);
   3. Medical Records-Or. Marc Aiken;
   4. Medical Records-Dr. Bryan Arnette;
   5. Medical Records-Wellmont-Holston Valley Hospital; and,
   6. Medical Records-Dr. Marc Aiken.

Technical record: 5
   I. Petition for Benefit Determination, September 28, 20 I5;
   2. Dispute Certification Notice, November 19, 20I5;
   3. Request for Expedited Hearing, December 1, 2015;
   4. Amended Request for Expedited Hearing, December IO, 20I5;
   5. Order Granting Employee's Attorney Motion to Withdraw, June 30, 20I6;
   6. Show Cause Order, dated June 13, 2016;
   7. Order Setting Expedited Hearing, dated August I5, 20 16; and
   8. Employer's Pre-Hearing Brief.




5
  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.

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                          CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the Expedited Hearing Order
 Denying Requested Medical Benefits was sent to the following recipients by the
 following methods of service on this the _20 1h day of September, 2016.

Name                     Certified Mail Via Email Service Sent To:
Mr. Daniel Kelley               X          X      3500 Clipse Road
                                                  Kingsport, TN 37660
Jeffrey Cranford, Esq.                     X      jcranford@wimberlylawson.com




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