                                                                                                           FILED
                                                                                                       October 7,.2016

                                                                                                          TN COURT OF
                                                                                                  WORKERS' CO~IPii:NSATION
                                                                                                         CL\IMS

                                                                                                         Tim e· 12:3:5 PM



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

Jamal Darraj,                                          )    Docket No.: 2015-01-0339
           Employee,                                    )
                                                       )    State File No.: 55851 2015
v.                                                     )
                                                       )    Judge Audrey A. Headrick
McKee Foods,                                            )
          Employer.                                     )
                                                        )

                             COMPENSATION HEARING ORDER


       This matter came before the undersigned Workers' Compensation Judge on
September 15, 2016, for a Compensation Hearing, pursuant to Tennessee Code
Annotated section 50-6-239 (20 15). The primary legal issue is whether Mr. Danaj
sustained a compensable injury. 1 If so, then the question turns to the extent of
entitlement to medical and temporary disability benefits. For the reasons set forth below,
this Court finds Mr. Darraj did not establish by a preponderance of the evidence that he
sustained a compensable injury.

                                            History of Claim

       This case involves an incident that occurred on July 19, 2015, when Mr. Darraj
experienced pain in his hands and forearms while feeding cardboard into a hopper. Mr.
Darraj is a 59-years-old resident of Catoosa County, Georgia. He completed high school.
The parties agreed that Mr. Darraj provided proper, statutory notice of the alleged injury
and that he selected Dr. Marshall Jemison from a panel of physicians. However, Mr.
Darraj testified he initially treated with Dr. McKinley Lundy, authorized by McKee
Foods, since Dr. Jemison was on vacation. The Referral to Physician form completed by
McKee Foods' nurse stated that Mr. Darraj had complained of "gradual onset bilateral
wrist pain intermittent past 2 months [illegible] worsen on 07119115 extreme burning and

1
  A complete listing of the technical record, stipulations, and exhibits admitted at the Compensation Hearing is
attached to this Order as an appendix.
pain." 2 (Ex. 1.)

        When Mr. Darraj saw Dr. Lundy on July 21, 2015, he gave a history ofhaving "to
constantly bend boxes for around 1 lh hours on the evening of 7119/15." !d. He told Dr.
Lundy he worked for McKee Foods for eleven years and worked as a machine operator
for the past five to six years. !d. Although Mr. Darraj acknowledged having right carpal
tunnel surgery in the 1980s, he denied having any problems with his wrists until several
months prior to July 19, 2015. !d. Dr. Lundy diagnosed bilateral wrist sprain and
forearm strain. He ordered physical therapy and released him to return to work with
restrictions. !d. On the bottom half of the Referral to Physician form completed by Dr.
Lundy, he checked "yes" next to the box asking if it was work-related.

        Mr. Darraj saw Dr. Marshall Jemison, his chosen panel physician, on July 30,
2015. (Ex. 2; Ex. 9.) He provided a similar history and complained of significant
bilateral wrist pain that began on July 19, 2015, but had been present for some time. !d.
Mr. Darraj stated "[t]here was no injury at that time but he was doing more with his
hands and wrist when he began having pain at the thumbs and at the radial aspect of the
wrist with some swelling." !d. After examining Mr. Darraj and taking x-rays of both
hands, Dr. Jemison listed several conditions under "Impression." Dr. Jemison diagnosed
Mr. Darraj with the following: "1) Osteoarthritis, pantrapezial at both thumbs, right
worse than left. 2) Right wrist radiocarpal arthritis. 3) Left long trigger." Dr. Jemison
addressed causation. He opined:

        I do not believe that these conditions are primarily related to his work
        activities as there was no injury and his arthritis is very significant. I have
        discussed this with him in detail including a brief summary of Tennessee
        Workers' Compensation Laws. He is not in agreement about the work
        relatedness of this condition, so he may want to seek another opinion.

!d.

       Dr. Jemison completed a Standard Form Medical Report. (Ex. 11.) In the
Standard Form Medical Report, Dr. Jemison stated Mr. Darraj did not suffer any
temporary total disability because of the July 19, 2015, incident. !d. at 4. Considering
Mr. Darraj's medical history, diagnosis and treatment, and all other available information
regarding the onset and causes of his injury, Dr. Jemison stated Mr. Darra's injury more

2
   The Court notes that Mr. and Mrs. Darraj both referenced the fact, either in their testimony and/or in pleadings
filed, that English is not Mr. Darraj's first language. The clear implication in statements made by the Darrajs was
that Mr. Darraj was perhaps disadvantaged by not having an interpreter present during his deposition and the
compensation hearing. However, on the new patient form signed by Mr. Darraj, he wrote that English is the primary
language spoken at home. Further, pursuant to Rule 3.02 of Court of Workers' Compensation Claims Practices and
Procedures (20 15), it is the parties' responsibility to retain an interpreter approved by the Court.
likely than not, as opposed to speculation or possibility, did not arise primarily out of and
in the course and scope of his employment. Id. Dr. Jemison assigned no permanent
medical impairment attributable to the incident on July 19, 2015. ld. Furthermore, Dr.
Jemison specifically opined in a handwritten note on the Standard Form Medical Report,
"No injury. Just arthritis." ld.

        Since Mr. Darraj disagreed with Dr. Jemison's optmon, he consulted with Dr.
Joseph L. Burton, a forensic pathologist. In an undated "To Whom it May Concern"
letter, Dr. Burton stated he "extensively interviewed Mr. Darraj at my office in
Alpharetta, Georgia on August 8, 2015." (Ex. 5.) Dr. Burton opined, "[Mr. Darraj's]
symptoms clearly date to a specific event in which the carton former was not working
properly." ld. Dr. Burton opined, "[t]here is absolutely no doubt that Mr. Darraj's
current debility is associated with his assembly line work and specifically by an event
occurring July 19, 2015 that precipitated the acute onset of increased pain and
symptoms." ld. He acknowledged that, "[a]lthough I am not a treating physician in Mr.
Darraj ' s case, I am a trained medical doctor whose p e~cialty is pathology which is the
study of how disease and trauma effect [sic] our bodies." ·' ld.

        After his one-time consultation with Dr. Burton, Mr. Darraj treated with Dr.
Edward H. Bolliger, an orthopedic surgeon in Kennesaw, Georgia. Under a section
entitled "IMP," Dr. Bolliger noted, "[p]ain in wrists, asymptomatic prior to 07/19/2015.
Prior to an event where he had to use his hands in a different way than usual due to a
malfunctioning machine at work." (Ex. 3.) After examining Mr. Darraj and reviewing x-
rays taken, Dr. Bolliger opined as follows:

        I believe at this point [Mr. Darraj] has significant bilateral wrist problems,
        osteoarthritis on the right at the radiocarpal joint as well as thumb CMC-1
        osteoarthritis and left thumb CMC-1 osteoarthritis. Asymptomatic prior to
        the work injury, but 11 years of repetitive work doing the same kind of
        activity. I believe his problem is work-related and the majority of his
        problems can be traced not only to his work activities but the additional
        event on 07/19/2015 .... Lastly, I have reviewed the information from Dr.
        Joseph Burton. Dr. Burton is an expert in connecting injuries with events
        and exposures. He is nationally renowned in this arena and in his opinion,
        there is no doubt that [Mr. Darraj's] current disability is associated with
        assembly line work and then additionally the events of July 19th and I am
        inclined based on his training and expertise and in working with patients
        who have similar symptoms, that I have no reason not to agree with Dr.
        Burton.

3
  Dr. Burton' s website credentials attached to his Form C-32 indicate that his past medical career before retiring
primarily consisted of working as the chief medical examiner and senior consulting pathologist for various counties.
Since 2000, Dr. Burton has worked as a consultant in forensic and environmental pathology and medicine where his
primary practice appears focused on motor vehicle crashes.
!d. Dr. Holliger placed Mr. Darraj on restricted duty.

       Mr. Darraj continued to treat with Dr. Holliger regarding his bilateral wrist
complaints. On December 14, 2015, Dr. Holliger opined, "[b]ilateral hand pain and
problems, work-related. [Mr. Darraj] has problems that are greater than 50% attributable
to his work and work activities over the last many years." !d. After noting that Mr.
Darraj did not want to proceed with surgery, Dr. Holliger placed him at maximum
medical improvement (MMI) on March 10, 2016. !d.

       Dr. John A. Gracy, a board certified orthopedic surgeon, performed a medical
records review on behalf of McKee Foods and completed a Standard Form Medical
Report. (Ex. 12.) He reviewed the medical records of Drs. Lundy, Jemison, Burton, and
Holliger, including paper copies of Dr. Jemison's x-rays. !d. In a Standard Form
Medical Report, Dr. Gracy found Mr. Darraj suffered no temporary total disability
because of the July 19, 2015, incident. !d. at 4. Further, considering Mr. Darraj's
medical history, diagnosis and treatment, and all other available information regarding
the onset and causes of his injury, Dr. Gracy opined it is more likely than not, as opposed
to speculation or possibility, that Mr. Darraj's injury did not arise primarily out of and in
the course and scope of his employment. !d. Dr. Gracy assigned no permanent medical
impairment attributable to the incident on July 19,2015. !d.

        Drs. Holliger and Burton also completed Standard Form Medical Reports. (Ex. 3;
Ex. 5) However, contrary to the requirements of the Standard Form Medical Report,
neither physician completed page four. !d. Instead, both Drs. Holliger and Burton
omitted the page. !d. Page four specifically applies to injuries that occur on or after July
I, 2014, and it contains the applicable definition of causation for post-July 1, 2014
injuries set forth by Tennessee Code Annotated section 50-6-102 (20 15). The causation
opinions given by Drs. Holliger and Burton provided on page three are in accord with the
pre-July 1, 2014 causation standard.

       Mr. Darraj filed an Amended Petition for Benefit Determination on August 9,
20 16, seeking temporary disability benefits, medical benefits, and permanent disability
benefits. The parties did not resolve the disputed issues through mediation, and the
Mediating Specialist filed a Dispute Certification Notice on September 9, 2016. This
Court conducted the Compensation Hearing on September 15, 2016.

       At the Compensation Hearing, Mr. Darraj asserted he sustained either an injury or
aggravation of his pre-existing arthritis to his hands, wrists, and forearms arising
primarily out of and in the course and scope of his employment with McKee Foods. He
relied upon the opinions of Drs. Burton and Holliger. Mr. Darraj argued Dr. Jemison's
opinion cannot be presumed correct because he diagnosed him with a sprain and
traumatic arthritis, which are injuries caused by cumulative trauma. He also argued Dr.
Gracy's opinion should not be considered because Dr. Gracy never saw him, and he
based his opinion on Dr. Jemison's medical records without considering either the
opinions given by Drs. Burton and Bolliger or Mr. Darraj's job description.

        McKee Foods countered Mr. Darraj failed to demonstrate by a preponderance of
the evidence that his employment contributed more than fifty percent in causing the
injury, considering all causes. Specifically, McKee Foods argued that Dr. Jemison's
opinion, as the panel physician, was not rebutted by a preponderance of the evidence. It
pointed out that Dr. Jemison's opinion was consistent with the causation standard set
forth in Tennessee Code Annotated section 50-6-102(14) (2015) for post-July 1, 2014
injuries. McKee Foods argued the opinions given by Drs. Burton and Bolliger do not
satisfy the standard set forth in Tennessee Code Annotated section 50-6-102(14) (2015),
and both physicians excluded page four, which is required by Standard Form Medical
Reports. Additionally, McKee Foods pointed out that Dr. Burton's background was as a
county medical examiner in Georgia, and he now acts as an expert witness primarily in
automobile accident cases.

                        Findings of Fact and Conclusions of Law

        In this case, the Court will not construe the Workers' Compensation Law
remedially or liberally in favor of either party but shall construe it fairly, impartially and
in accordance with basic principles of statutory construction favoring neither Mr. Darraj
nor McKee Foods. At the Compensation Hearing, Mr. Darraj has the burden of proving
all essential elements of his claim by a preponderance of the evidence. Tenn. Code Ann.
§ 50-6-239(c)(6) (2015); 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,
20 15).

        For his injury to be compensable, Mr. Darraj must show it arose primarily out of
and in the course and scope of employment and be identifiable by time and place of
occurrence. Tenn. Code Ann. § 50-6-102(14)(A) (2015). The parties stipulated that Mr.
Darraj provided proper notice of his injury to McKee Foods, that his claim is not barred
by the statute of limitations, and that an employment agreement existed between the
parties. The primary disputed issue is compensability.

       Mr. Darraj must show, to a reasonable degree of medical certainty, that his injury
arose "primarily out of and in the course and scope" of his employment with McKee
Foods by proving 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(14)(B) (2015). The legislature defined "[s]hown to a reasonable degree
of medical certainty" to mean the physician must opine "it is more likely than not
considering all causes, as opposed to speculation or possibility." Tenn. Code Ann. § 50-
6-1 02(14 )(D) (20 15). Likewise, an aggravation of a pre-existing condition is
compensable only if "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) (2015). Further, as the panel physician, Dr. Jemison's
opinion regarding causation "shall be presumed correct but this presumption shall be
rebuttable by a preponderance of the evidence." Tenn. Code Ann. § 50-6-102(14)(E)
(20 15).

        With these legal principles in mind, the Court must consider whether the medical
proof presented by Mr. Darraj rebuts the presumption of correctness held by Dr. Jemison.
Here, neither Dr. Burton nor Dr. Bolliger completed page four of the Standard Form
Medical Report, which specifically addresses the correct legal standard for
compensability of injuries occurring on or after July 1, 2014. As set forth in Tennessee
Code Annotated section 50-6-235(c)(l) (2015), the Standard Form Medical Report is the
equivalent of direct testimony from a physician in lieu of a deposition. Conversely, Dr.
Jemison completed a Standard Form Medical Report, including page four, and denied
that Mr. Darraj's injury arose primarily out of and in the course and scope of his
employment. (Ex. 11 at 4.) He further clarified in a handwritten note, "No injury. Just
arthritis." !d. Therefore, the Court holds that Mr. Darraj failed to present sufficient
evidence to overcome the presumption of correctness given to Dr. Jemison's opinion on
causation.

       Accordingly, after careful consideration of the evidence as a whole, this Court
concludes Mr. Darraj failed to establish, by a preponderance of the evidence, his bilateral
hand, wrist and forearm conditions arose primarily out of and in the course or scope of
his employment with McKee Foods. In light of the Court's holding, Mr. Darraj's request
for medical benefits, temporary disability benefits, and permanent disability benefits is
denied.

       This Court taxes the court costs to McKee Foods pursuant to Tennessee
Compilation Rules and Regulations Rule 0800-02-21-.07 (2015). Further, McKee Foods
shall prepare and submit a Statistical Data Form for this matter within ten calendar days
ofthe date of judgment.

      IT IS, THEREFORE, ORDERED that the claim of Mr. Darraj against McKee
Foods or its workers' compensation carrier is denied.
      IT IS SO ORDERED.

      ENTERED this the 7th day of October, 2016.




Right to Appeal:


Tennessee Law allows any party who disagrees with this Compensation 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: "Compensation Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within thirty calendar days of the
      date the Workers' Compensation Judge entered the Compensation Hearing Order.

   3. Serve a copy of the Compensation 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 party filing the notice of appeal, 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 fifteen calendar days of the filing
      of the Compensation Hearing Notice of Appeal. Alternatively, the party filing the
      appeal may file a joint statement of the evidence within fifteen calendar days of
      the filing of the Compensation 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. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (20 15).

   6. After the Workers' Compensation Judge approves the record and the Court Clerk
      transmits it to the Workers' Compensation Appeals Board, the appeal will be
      docketed and assigned to an Appeals Board Judge for review. At that time, a
      docketing notice shall be sent to the parties. Thereafter, the party who filed the
      notice of appeal shall have fifteen calendar days after the issuance of the docketing
      notice to submit a brief to the Appeals Board for consideration. Any opposing
      party shall have fifteen calendar days after the filing of the appellant's brief to file
      a brief in response. No reply briefs shall be filed. Briefs shall comply with the
      Practice and Procedure Guidelines of the Workers' Compensation Appeals Board.
      See Tenn. Comp. R. & Regs. 0800-02-22-.03(6) (2015).

    To appeal your case directly to the Tennessee Supreme Court, the
Compensation Order must be final and you must comply with the Tennessee Rules
of Appellate Procedure. If neither party timely files an appeal with the Appeals
Board, this Order will become final by operation of law thirty calendar days after
entry pursuant to Tennessee Code Annotated section 50-6-239(c)(7) (2015).
                                    APPENDIX

Technical record:
          1. Petition for Benefit Determination, filed October 12, 2015;
          2. Dispute Certification Notice, filed November 10, 2015;
          3. Request for Expedited Hearing and Affidavit, filed December 18, 2015;
          4. Notice ofExpedited Hearing, filed December 22, 2015;
          5. Employer's Response to Request for Expedited Hearing Regarding
              Temporary Disability and Medical Benefits, filed December 23, 2015;
          6. Order Granting Continuance, entered February 4, 2016;
          7. Motion Requesting Withdrawal of Request for Expedited Hearing, filed
              February 29, 2015;
          8. Request for Initial Hearing, filed February 29, 2015;
          9. Order Granting Motion to Withdraw Request for Expedited Hearing,
              entered March 4, 2016;
          10. Notice of Initial Hearing, filed April28, 2016;
          11. Initial Hearing Order, entered May 19, 20 16;
          12. Motion to Compel, filed June 17, 2016;
          13. Response of McKee Foods Corp. to Employee's Motion to Compel, filed
              June 17, 2016;
          14. Motion to Quash Subpoenas, filed June 22, 2016;
          15. Response of McKee Foods Corporation to Employee's Motion to Quash
              Subpoenas, filed June 22, 20 16;
          16. Order Denying Motion to Compel and Motion to Quash Subpoenas, filed
              June 30, 20 16;
          17.Notice oflntent, filed August 1, 2016;
          18. Notice of Filing Certified Medical Records & Statement Concerning Up-to-
              Date Medical Records, filed August 1, 20 16;
          19. Statement of Medical Records, filed August 1, 20 16;
          20.Request for Extension, filed August 1, 2016;
          21. Response of McKee foods Corporation to Employee's Request for
              Extension, filed August 10, 2016;
          22. Notice of Filing Statement of Unresolved Evidentiary Disputes, filed
              August 15, 2016;
          23. Order Denying Request for Extension, entered August 15, 2016;
          24. Notice of Intent to Utilize Standard Form Medical Report for Industrial
              Injuries of D. Marshall Jemison, M.D., filed August 16, 2016;
         25. Notice of Intent to Utilize Standard Form Medical Report for Industrial
              Injuries of John A. Gracy, M.D., filed August 16, 2016;
         26. McKee Foods Corporation's List of Witnesses and Exhibits, filed August
              17,2016;
         27.Motion for Discovery, filed August 29, 2016;
            28. Employer's Response to Motion for Discovery and Employer's Motion for
                Sanctions, filed August 29, 2016;
            29. Rebuttal to Mr. Quinn's Response to Motion for Discovery, filed August
                30,2016;
            30. Inclusion for Dispute Certification Notice, filed August 30, 2016;
            31. Amended Petition for Benefit Determination, filed September I, 20 16;
            32. Pre-Compensation Hearing Statement, filed September 1, 2016;
            33. Pre-Compensation Hearing Statement, filed September 1, 2016;
            34. Order Denying Motion for Discovery, entered September 8, 20 16;
            35.Dispute Certification Notice, filed September 9, 2016.

The Court did not consider attachments to Technical Record filings unless admitted into
evidence during the Compensation Hearing. The Court considered factual statements in
these filings or any attachments to them as allegations unless established by the evidence.

Exhibits:

      1. Medical records of Dr. McKinley Lundy (Bates stamped Darraj-Lundy-01 -
          Darraj-Lundy-07);
      2. Medical records of Dr. Marshall Jemison (Bates stamped Darraj-Jemison-0 1 -
          Darraj-Jemison-1 0);
      3. Medical records of Dr. Edward Holliger (Bates stamped Darraj-Holliger-01 -
          Darraj-Holliger-18) and Form C-32 Standard Form Medical Report of Dr.
          Holliger;
      4. Form C-30A Final Medical Report of Dr. Holliger (For Identification
          Purposes);
      5. Medical records of Dr. Joseph Burton (Bates stamped Darraj-Burton-01 -
          Darraj-Burton-04) and Form C-32 Standard Form Medical Report of Dr.
          Burton;
      6. Form C-30A Final Medical Report of Dr. Burton (For Identification Purposes);
      7. Packaging Operator Job description;
      8. McKee Foods'View Involved Party;
      9. Medical records of Dr. Marshall Jemison (Bates stamped MFC-HHC-001 -
          MFC-HHC-0004);
      10.Medical records of Dr. John A. Gracy, M.D. MFC-TOS-0001 - MFC-TOS-
          0010;
      11.Form C-32 Standard Form Medical Report of Dr. Marshall Jemison; and,
      12. Form C-32 Standard Form Medical Report of Dr. John Gracy.
                                    CERTIFICATE OF SERVICE

            I hereby certify that a true and correct copy of this Compensation Hearing Order was sent
    to the following recipients by the following methods of service on this the 7th day of October,
    2016.

Name                  Certified   First     Via     Fax    Via          E-Mail Address/
                      Mail        Class     Fax     Number Email        Mailing Address
                                  Mail
Mr. Jamal Darraj          X                                      X      656 Lee Drive
                                                                        Ringgold, GA 30736
                                                                        martjama.12000la1yahoo.com
Bart Quinn, Esq.                                                 X      bguinn(@,chamblisslaw.com




                                                             , Clerk of Court
                                                  Court of orkers' Compensation Claims
                                                  WC.CouftClerk@tn.gov
