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

Stephen Pardy,                                                ) Docket No.: 2015-08-0656
            Employee,                                         )
v.                                                            ) State File No.: 83040-2015
Memphis Cycles, Inc. d/b/a Honda-                             )
Yamaha of Memphis,                                            ) Judge Jim Umsted
            Employer,                                         )
And                                                           )
Sentry Insurance a Mutual Co.,                                )
            Insurance Carrier.                                )


                                    EXPEDITED HEARING ORDER
                                   DENYING REQUESTED BENEFITS


        This case came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by the employee, Stephen Pardy, under Tennessee
Code Annotated section 50-6-239 (2015). The present focus of this case is whether the
employer, Memphis Cycles, Inc. d/b/a Honda-Yamaha of Memphis (Memphis Cycles),
must provide medical and temporary disability benefits for Mr. Pardy's alleged work-
related back and right shoulder injuries. The central legal issues are: (1) whether Mr.
Pardy sustained a compensable injury arising primarily out of and in the course and scope
of his employment with Memphis Cycles; (2) whether Mr. Pardy is entitled to payment of
unauthorized, past medical expenses; (3) whether Mr. Pardy is entitled to continued
medical benefits; and (4) whether Mr. Pardy is entitled to past temporary disability
benefits, and if so, in what amount. For the reasons set forth below, the Court holds Mr.
Pardy is unlikely to succeed at a hearing on the merits in proving entitlement to the
requested benefits. 1

                                                  History of Claim

      The following facts were established at the Expedited Hearing held on September
28, 2016. Mr. Pardy is a sixty-year-old resident of Crittenden County, Arkansas who
1
    A complete listing of the technical record and exhibits is attached to this Order as an appendix.


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    worked as a mechanic for Memphis Cycles for approximately thirteen years. Mr. Pardy
    claimed he injured his back and right should r2 at work on October 7, 2015, while
    helping a customer load a motorcycle into a truck. However, he admitted he did not feel
    any pop or pain after loading the motorcycle. It was not until later in the day that his
    back pain started. He further admitted he told co-worker Melvin Monger he did not
    know what he had done to his back.

       There was conflicting testimony about how Mr. Pardy was injured. Testimony in
the affidavit of Mr. Pardy's co-worker, Graham Robins, conflicts with Mr. Pardy's
current version of events. Mr. Robins testified Mr. Pardy complained of back pain on
October 7, 2015, but indicated he must have injured his back while working on his truck
over the previous weekend. According to Mr. Robins, Mr. Pardy never mentioned
injuring his back at work. During the Expedited Hearing, Mr. Pardy did not deny that he
mentioned working on his truck as a possible cause of his back pain on October 7, 2015.

        The co-owner of Memphis Cycles, Emily Hall, testified live at the hearing. She
testified that Mr. Pardy called her on October 8, 2015, to advise he would not be at work
because he needed to go to the chiropractor for back pain. 3 Ms. Hall stated Mr. Pardy
never mentioned hurting his back at work during this conversation or during
conversations they had over the following two days. Ms. Hall indicated it was not until
October 13, 2015, that she obtained notice of the alleged work injury when Baptist
DeSoto Hospital called requesting Memphis Cycles' workers' compensation information.
Ms. Hall told the hospital representative that Mr. Pardy would need to contact her to
report the alleged injury, which he did later that day. After speaking to Mr. Pardy about
his claim, Ms. Hall filed an Employer's First Report of Work Injury or Illness with
Memphis Cycles' workers' compensation insurance carrier.

       On October 14, 2015, Mr. Pardy obtained unauthorized medical treatment at the
emergency room at Baptist DeSoto Hospital. Medical providers at the emergency room
performed diagnostic testing of his right shoulder, thoracic spine, and cervical spine,
which showed no acute injuries but did reveal degenerative changes. According to Mr.
Pardy, the hospital referred him to Semmes Murphey Clinic for follow-up treatment.

        Based on the limited medical proof submitted by Mr. Pardy, he treated with Dr.
Manuel Carro at Semmes Murphey. This treatment was also unauthorized. While Mr.
Pardy provided no narrative notes related to his treatment with Semmes Murphey, he did
file an intake form dated October 22, 2015, and a letter from Dr. Carro dated December
2, 2015, in which Dr. Carro took Mr. Pardy off work for two months.

2
   Memphis Cycles points out that Mr. Pardy did not reference a right-shoulder injury in his Petition for Benefit
Determination and did not report a shoulder injury when he gave notice of his injury.
3
  Mr. Pardy testified he initially treated on his own with a chiropractor. However, he did not introduce records from
this treatment into evidence at the hearing.


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        At the Expedited Hearing, Mr. Pardy asked the Court to order the provision of a
panel of physicians for authorized treatment for his work-related injuries as well as
temporary disability benefits. He testified his main injury is a brachial plexus injury to
his right shoulder that affects his right arm and hand, but stated he continues to have
some back pain as well. He advised that Memphis Cycles did not pay for any of his prior
treatment and indicated that he has not worked anywhere since his injury because he
cannot use his right hand. He admitted to working on his truck over the weekend before
his injury but testified he had no problem at work on October 6, 2015, or on October 7,
2015, before his back started hurting after loading the motorcycle. He also argued he was
a trusted employee prior to his work injury with a good attendance record and with access
to the company's bank deposits.

        Memphis Cycles did not dispute that Mr. Pardy was a good employee. However,
it presented testimony from Ms. Hall to show he was terminated as of December 8 2015,
for sending threatening emaiJs 4 and attempting to extmt money from the company after
his workers' compensation claim was denied on October 29, 2015. Memphis Cycles
argued Mr. Pardy did not meet his burden of proving an injury by accident under
Tennessee Code Annotated section 50-6-102(14) (2015). Furthermore, it contended Mr.
Pardy presented no proof of medical causation or of entitlement to the requested benefits.
As such, it asked the Court to deny Mr. Pardy's claim.

                             Findings of Fact and Conclusions of Law

                                        General Legal Principles

       Mr. Pardy need not prove every element of his claim by a preponderance of the
evidence in order to recover temporary disability and/or medical benefits 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).
Instead, he must come forward with sufficient evidence from which this Court might
determine he is likely to prevail at a hearing on the merits. ld.; Tenn. Code Ann. § 50-6-
239(d)(l) (2015).

       This lesser evidentiary standard does not relieve Mr. Pardy 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."'

4
  Mr. Pardy filed a Motion to Exclude Evidence immediately prior to the Expedited Hearing. He specifically asked
the Court to exclude any evidence regarding the emails he sent to Memphis Cycles in December 20 I 5 as irrelevant
and highly prejudicial. The Court denied the motion, finding the emails had potential relevance to the issue of
temporary disability benefits and assuring Mr. Pardy it would only consider the email for purposes of the limited
issue of temporary disability benefits.

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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). In analyzing whether
he met his burden, the Court will not remedially or liberally construe the law in his favor,
but instead shall construe the law fairly, impartially, and in accordance with basic
principles of statutory construction favoring neither Mr. Pardy nor Memphis Cycles. See
Tenn. Code Ann. § 50-6-116 (20 15).

    Compensability and the Role ofLay Testimony in Establishing Medical Causation

        The Court initially must determine whether Mr. Pardy has met his burden of
proving he is likely to prevail at a hearing on the merits of his claim. To prove a
compensable injury under the workers' compensation statutes, Mr. Pardy must show his
injury was caused by an incident, or specific set of incidents, identifiable by time and
place of occurrence. Tenn. Code Ann. § 50-6-102(14)(A) (2015). In addition, his injury
must arise primarily out of and occur in the course and scope of the employment. Tenn.
Code Ann. § 50-6-1 02( 14) (20 15). "Arising primarily out of and in the course and scope
of employment" requires a showing, to a reasonable degree of medical certainty, that the
alleged work injury "contributed more than fifty percent (50%) in causing the . . .
disablement or need for medical treatment, considering all causes." Tenn. Code Ann. §
50-6-102(14)(C) (2015). "Shown to a reasonable degree of medical certainty" means
that, in the opinion of the treating physician, it is more likely than not considering all
causes as opposed to speculation or possibility. Tenn. Code Ann. § 50-6-102(14)(D)
(2015).

       Mr. Pardy admitted that while moving the motorcycle he felt nothing indicating he
sustained an acute injury. After moving the motorcycle, he felt fine. Nothing caused him
to believe he had injured his back. Later in the day, however, his back started hurting.
He admittedly told a co-worker he did not know what he had done to cause his back pain.
Later the same day, according to the affidavit of Mr. Robins, Mr. Pardy indicated he must
have injured his back while working on his truck over the previous weekend. Mr. Pardy
now contends the work incident likely caused his back injury. He introduced no medical
evidence supporting this contention. The Court finds Mr. Pardy's testimony, if believed,
at most shows a work accident "could be" the cause of his claimed injury.

       The Court must consider whether Mr. Pardy's lay testimony is enough for the
Court to award benefits. The case of Scott v. Integrity Staffing Solutions, No. 2015-01-
0055,2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *11-12 (Tenn. Workers' Comp. App.
Bd. Aug. 18, 20 15) discussed the role of lay testimony in establishing medical causation.
The Court held:

      Prior to the 2013 reforms to the Workers' Compensation Law, Tennessee
      courts routinely held that an injured employee could satisfy the burden of
      proof with respect to the element of medical causation by offering expert

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       medical testimony that a work accident "could be" the cause of the
       employee's medical condition, when there was corroborating lay testimony
       from which it could reasonably be inferred that the incident was in fact the
       cause of the injury. See, e.g., Hill v. Eagle Bend Mfg., 942 S.W.2d 483
       (Tenn. 1997). The analysis in such cases was predicated on expert medical
       testimony combined with corroborative lay testimony. Thus, even under
       pre-reform law, lay testimony alone was insufficient in most cases to
       establish adequate evidence of medical causation.

             The 2013 Workers' Compensation Reform Act substantially altered
      this standard. In Tennessee Code Annotated section 50-6-102(13), the
      general assembly amended the definition of "injury" to include the
      following: "(C) An injury causes death, disablement or the need for medical
      treatment only if it has been shown to a reasonable degree of medical
      certainty that it contributed more than fifty percent (50%) in causing the
      death, disablement or need for medical treatment, considering all causes."
      Tenn. Code Ann. § 50-6-102(13)(C) (2014) (emphasis added). Moreover,
      in subsection (D), the statute now provides that the phrase "'[s]hown 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(13)(D) (2014)
      (emphasis added).

       This Court holds Mr. Pardy's lay testimony as to causation was speculative as he
did not dispute that he initially did not know what caused his back injury and admitted
saying that he may have hurt his back while working on his truck. Based on Mr. Pardy's
speculative testimony, and no corroborative expert medical testimony, the Court holds he
is unlikely to prevail at a hearing on the merits on the issue of causation. Having
determined this issue in favor of Memphis Cycles, it is not necessary to address any other
issues raised by the parties.

      IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Pardy's claim against Memphis Cycles for the requested medical and
      temporary disability benefits is denied at this time.

   2. This matter is set for an Initial Hearing/Status Conference on December 5, 2016,
      at 10:00 a.m. Central time.

      ENTERED this the 4th day of October, 2016.




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                                  ~~4#
                                  Judge Jim Umsted
                                  Court of Workers' Compensation Claims

Status Conference:

       A Status Conference has been set with Judge Jim Umsted, Court of Workers'
Compensation Claims. You must call 615-532-9550 or toll-free at 866-943-0014 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.


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.



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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
   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.




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                                               APPENDIX

Exhibits:
   1. Petition for Benefit Determination;
   2. Correspondence accompanying Petition for Benefit Determination;
   3. Collective Exhibit of medical records from Baptist DeSoto Hospital Emergency
       Room, dated October 14, 2015;
   4. Collective Exhibit of Semmes Murphey Clinic medical records, dated October 22,
       2015, and December 2, 2015;
   5. October 2015 calendar;
   6. Affidavit of Graham Robins;
   7. Excerpts from Mr. Pardy's deposition (p. 67, 1. 4 through p. 69, 1. 3);
   8. Excerpts from Mr. Pardy's deposition (p. 67, ll. 11-16);
   9. Excerpts from Mr. Pardy's deposition (p. 70, ll. 10-20);
   10. Excerpts from Mr. Pardy's deposition (p. 54, 1. 22 through p. 55, 1. 4);
   11. Form C-20 Employer's First Report of Work Injury or Illness;
   12. Signed statement of Graham Robins;
   13. Signed statement of Mickey Watson (for identification only);
   14. Email from Mr. Pardy to Emily Hall, dated December 4, 2015;
   15. Memphis Police Department Listing of Persons Banned from Premises;
   16. Termination letter, dated December 8, 2015; and
   17. Form C-41 Wage Statement.

Technical Record: 5
   1. Petition for Benefit Determination;
   2. Dispute Certification Notice;
   3. Request for Expedited Hearing;
   4. Memphis Cycles' Witness and Exhibit List;
   5. Memphis Cycles' Pre-Hearing Statement;
   6. Mr. Pardy's Pre-Hearing Memorandum;
   7. Court Order, filed September 27, 2016; and
   8. Motion to Exclude Evidence.




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 foregoing was sent to the
 following recipients by the following methods of service on this the 4th day of October,
 2016.

Name                   Certified     Via    Via       Email Address
                       Mail          Fax    Email
John Dunlap,                                   X      jdunlagOO@gmail.com
Employee's Attorney
Lee Anne Murray,                                X     leeamurray@feeneymuirray.com
Employer's Attorney



                                   Penny Shrum, Clerk
                                   Court of Workers' Compensation Claims
                                   WC.CourtClerk@tn.gov




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