                                                                                                             FILED

                                                                                                          TNCOURTOF
                                                                                                  ll\rOR.KI.RS 'OOllP!ENS.LmON
                                                                                                               C1An.rs

                                                                                                            Time ll:47PM

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

JOETUSA,                                                   )   Docket No.: 2015-07-0259
                  Employee,                                )
v.                                                         )
VOLKSWAGEN GROUP OF                                        )   State File Number: 34226-2015
AMERICA,                                                   )
                                                           )
                  Employer,                                )   Judge Thomas Wyatt
And                                                        )
XL SPECIALITY INSURANCE CO.,                               )
         Carrier.                                          )


     EXPEDITED HEARING ORDER DENYING MEDICAL AND TEMPORARY
           DISABILITY BENEFITS (REVIEW OF THE FILE ONLY)


        This matter came before the undersigned Workers' Compensation Judge on
November 17, 2016, upon the Request for Expedited Hearing filed by Joe Tusa pursuant
to Tennessee Code Annotated section 50-6-239 (2015). Mr. Tusa requested a review of
the file without an evidentiary hearing, 1 seeking medical and temporary disability
benefits for an alleged work injury caused by repetitive duties he performed in
Volkswagen's paint shop. The focal issue at this stage of the claim is whether the
submitted evidence establishes that Mr. Tusa's injury is compensable under statutory
definitions, which Volkswagen denies. For the following reasons, the Court determines
Mr. Tusa is not, at this time, entitled to the requested interlocutory relief. 2



1
 In determining the appropriateness of deciding this claim on the record, the Court noted Volkswagen did not ask
for an evidentiary hearing. The Court reviewed the submitted evidence and determined it did not need additional
evidence to make a decision. Also, the Court reviewed all evidence submitted into the record because neither party
objected to the evidence submitted.
2
 A complete listing of the technical record and the exhibits admitted into evidence is attached as an appendix to this
Order.

                                                          1
                                     History of Claim

        Mr. Tusa is a fifty-nine-year-old resident of Rossville, Georgia who worked at
Volkswagen's plant near Chattanooga, Tennessee. As of April 13, 2015, Mr. Tusa had
worked as team leader in the paint shop for more than four years. (T .R. 1 at 1; Ex. 4 at 1,
3, 5, 7; Ex. 5 at 1.) During the weeks preceding April 13, while performing his duties at
Volkswagen, Mr. Tusa began experiencing low back pain radiating into his legs, left arm
pain extending into his fingers, pain in both knees and pain in his left foot. (Ex. 5 at 2,
8.) On April13, he called in sick because he could hardly walk due to pain. Id. at 8. Mr.
Tusa returned to work the next day but reported a work injury to Volkswagen on April
16, when his pain continued to intensify as he worked. !d.

       Volkswagen offered Mr. Tusa a panel from which he selected Dr. Jaime Recasens
as authorized treating physician. (Ex. 9.) Dr. Recasens is located "on-site" at
Volkswagen and Mr. Tusa saw him immediately. (Ex. 5 at 2; Ex. 11 at 1.) Dr. Recasens'
note indicates Mr. Tusa mainly complained of back pain radiating down his left leg, but
reported no trauma, falls, heavy lifting or known mechanism of injury. (Ex. 11 at 1.) Dr.
Recasens assessed that Mr. Tusa had lumbar back pain with suspected sciatica but
returned him to work without restrictions. Id. at 2, 3. He also opined that Mr. Tusa's
injury did not arise primarily out of and in the course and scope of employment. I d. at 2.

       On May 7, Mr. Tusa gave a recorded statement to Volkswagen's carrier. (Ex. 5 at
5.) In response to a question about how he was injured, Mr. Tusa stated:

       I am being 100% honest with you. I mean, they're calling it an injury. I'm
       not sure I did anything to my body, I mean I didn't hit anything, or
       anything like that. It's just I started feeling pain ... and I reported it. ...
       All I know is I hurt and it's not going away.

ld. at 11. Mr. Tusa also stated he was not satisfied with Dr. Recasens' decision to return
him to work and that he intended to see his personal doctor about his pain. Id. at 9.
Volkswagen denied the compensability of the claim on the ground it did not primarily
arise from his employment. (Ex. 1.)

       Mr. Tusa saw his personal physician, Dr. Melanie Blake, on May 11, reporting the
same symptoms he reported to Dr. Recasens. (Ex. 6 at 1.) Dr. Blake noted Mr. Tusa
reported that his job required manual labor and he was "aware that his job contributes to
his pain." !d. Over the next several weeks, Mr. Tusa underwent x-rays of his neck and
knees, an MRI of his neck, an EMG/NCS of his left arm, and numerous sessions of
physical therapy, all prescribed by Dr. Blake. (Ex. 2; Ex. 3, Ex. 5 at 6, 7, 18-19.)

      On August 17, Dr. Blake completed a Medical Questionnaire sent to her by Mr.
Tusa's attorney. (Ex. 7.) In response to a question about work restrictions, she opined

                                             2
that Mr. Tusa "is unable to perform manual labor" and that she had so restricted his work
activities since May 2015. !d. Dr. Blake also answered affmnatively to a question
whether "Mr. Tusa's employment at Volkswagen more likely than not contribute[d) more
than 50% in causing Mr. Tusa's injury, considering all causes." (Ex. 7.)

        Volkswagen sought its own causation opinion from Dr. David Darden, an
osteopath practicing in the area of occupational and environmental medicine, whom it
asked to review Mr. Tusa's treatment records. (Ex. 10 at 4.) Dr. Darden opined that Mr.
Tusa's pain derives from pre-existing, non-work-related osteoarthritis and
polyneuropathy. !d. at 3. While he recognized that a person with osteoarthritis will
experience pain during and after the performance of repetitive physical activity, Dr.
Darden concluded that Mr. Tusa did not sustain an injury that arose primarily out of and
in the course and scope of employment by Volkswagen. !d.

       In his Petition for Benefit Determination seeking medical and disability benefits,
Mr. Tusa described his mechanism of injury as, "[r]epeatedly [and] forcefully struck in
the back hundreds of times each day." (T.R. 1 at 1.) When the parties could not resolve
their dispute through mediation, the mediating specialist filed a Dispute Certification
Notice, after which Mr. Tusa filed his Request for Expedited Hearing. (T.R. 2, 5.)

        In the affidavit he filed in support of his Request for Expedited Hearing, Mr. Tusa
stated he had not worked at Volkswagen since May 11. (Ex. 5 at 3.) He also stated he
had worked at an amusement park within the work restrictions set by Dr. Blake. !d. at 4.

                       Findings of Fact and Conclusions of Law

        The Court applies the following legal principles in determining the issues in this
Expedited Hearing. Mr. Tusa bears 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). He need
not, however, prove every element 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). Rather, he must come forward with sufficient evidence from which
the Court can determine he is likely to prevail at trial in establishing his injury arose
primarily out of and in the course and scope of employment. !d. This lesser evidentiary
standard does not relieve Mr. Tusa from the burden of producing evidence of a
compensable injury, but allows the Court to grant some relief if that evidence does not
rise to the level of a preponderance of the evidence. 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).

       The statutory definition of a compensable injury governs the Court's decisional

                                             3
analysis here. Tennessee Code Annotated section 50-6-102(14)(A) (2015) defines a
compensable injury, including an injury caused by an aggravation of a pre-existing
condition, as one resulting from a "specific incident, or set of incidents, arising primarily
out of and in the course and scope of employment." Section 50-6-1 02( 14)(B) expands on
this defmition by providing that an injury arises primarily out of and in the course and
scope of employment only if the employee shows that his or her employment
"contributed more than fifty percent in causing the injury, considering all causes." An
employee must establish the above defmitional requirements to a reasonable degree of
medical certainty, meaning the employee must come forward with expert medical opinion
establishing a causal link between the alleged injury and the employee's employment.
See Tenn. Code Ann.§ 50-6-102(14)(C) (2015.) The medical expert must state his or her
opinion under a "more likely than not" standard, without resorting to speculation or mere
possibility. See Tenn. Code Ann. § 50-6-102(14)(D) (2015).

        A review of the record here reveals Mr. Tusa claims the cumulative injurious
effect of his work at Volkswagen caused injury when superimposed on his pre-existing
arthritic conditions. In his affidavit, Mr. Tusa explained that, until early 2015, most of
his duties were supervisory, requiring little manual exertion. (Ex. 5 at 2.) However, the
physical demands of his job changed when, in early 2015, his team lost a worker that
Volkswagen did not replace. !d. Mr. Tusa stated he was then required to perform the job
of the absent employee and, thus, began repetitively lifting, pushing, pulling, bending and
twisting ten hours per day, four days per week. Id. He also claimed his new job duties
placed him in close proximity to a line that mechanically transported cars with open
doors. He claimed the open doors repeatedly struck him in the back as he worked. !d. In
summary, Mr. Tusa stated in his affidavit, "[m]y body was not used to this much manual
labor, and it was really physically taxing for me." I d.

       The Court considered the conflicting medical expert testimony submitted by the
parties in deciding this claim. In Brees v. Escape Day Spa & Salon, No. 2014-06-0072,
2015 TN. Wrk. App. Bd. LEXIS 5, at *14-15, (Tenn. Workers' Comp. App. Bd. March
12, 2015), the Workers' Compensation Appeals Board recognized a trial court's
discretion to select which expert to accredit when the parties introduce conflicting expert
opinions in support of their positions. However, a trial court must exercise this discretion
within the framework of Tennessee Code Annotated section 50-6-102(14)(E) (2015),
which provides, "[t]he opinion of the treating physician, selected by the employee from
the employer's designated panel of physicians pursuant to § 50-6-204(a)(3), shall be
presumed correct on the issue of causation but this presumption shall be rebuttable by a
preponderance of the evidence."

        Here, Mr. Tusa selected Dr. Recasens from a panel, thus Dr. Recasens' opinion is
entitled to the presumption of correctness afforded by statute. In addition, Dr. Darden
also reviewed Mr. Tusa's treatment and diagnostic records and agreed that Mr. Tusa's
pain did not arise primarily out of and in the course and scope of his employment at

                                             4
Volkswagen. Thus, the Court must examine the opinion of Dr. Blake as compared to
those of Drs. Recasens (presumed correct by statute) and Darden, who supports Dr.
Recasens' opinion, to determine if Dr. Blake's opinion rebuts the contrary opinions by a
preponderance of the evidence.

        The Court begins its analysis by considering the history under which Dr. Blake
provided her opinion. The Court notes that, upon receipt of Mr. Tusa's history of
performing manual labor at Volkswagen, Dr. Blake wrote, "[patient] aware that his work
contributes to his pain." (Ex. 6 at 1.) When asked whether Mr. Tusa's injury arose
primarily out of and in the course of employment under the "more than 51%, considering
all causes" standard, Dr. Blake wrote, "Yes, patient's symptoms developed after he
started work at VW." (Ex. 7.)

        In view of the above-quoted backdrop to Dr. Blake's causation opinion, the Court
holds her opinion does not rebut the presumption of correctness afforded the opinion of
Dr. Recasens. At its core, Dr. Blake's opinion established only contributory and
temporal links between Mr. Tusa's arthritic conditions and his work at Volkswagen. The
Court interprets the definitional requirements of the Workers' Compensation Law to
require more than a contributory and temporal connection between and injury and work
to establish compensability. See Boyd v. Revel Logging, LLC., No. 2015-07-0053, 2015
TN. Wrk. Comp. App. Bd. LEXIS 31, at *9-10 (Tenn. Workers' Comp. App. Bd. Sept.
22, 20 15) (holding A causation opinion based on a temporal relationship between an
employee's injury and his work was insufficient to establish the compensability of the
injury in the face of an opinion of another physician that the injury was not work-related.)

       In view of the above, the Court holds that Mr. Tusa has not come forward with
sufficient expert medical opinion to establish he is likely to prevail at a hearing on the
merits in showing he sustained an injury that arose primarily out of and in the course and
scope of his employment with Volkswagen. Accordingly, the Court denies the
interlocutory relief Mr. Tusa sought.

       IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Tusa's requests for medical and temporary disability benefit are denied at this
      time.

   2. This matter is set for a Status Hearing on February 1, 2017, at 11:00 a.m.
      Eastern Time.

   3. 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)
      (2015). The Insurer or Self-Insured Employer must submit confirmation of

                                             5
      compliance with this Order to the Bureau by email 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
      W Compliance.Pr gram@tn.gov or by calling (615) 253-1471 or (615) 532-1309.

      ENTERED this the 29th day of November, 2016.


                                            Au~~~
                                         Judge Thomas Wy
                                         Court of Workers' Compensation Claims


Status Hearing:

       A Status Hearing has been set with Judge Thomas Wyatt, Court of Workers'
Compensation Claims. You must call toll-free at 855-747-1721 or 615-741-3061 to
participate in the Status 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 ftle 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 ftling 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 ftle an Affidavit

                                            6
   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.

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.




                                         7
                                               APPENDIX

Exhibits:

    1. Notice ofDenial of Claim for Compensation;
    2. Records of Dr. Joshua Alpers/UT Erlanger Neuromuscular Medicine;
    3. Records of Alliance Physical Therapy;
    4. Job Description and Essential Job Functions and Physical Demands records;
    5. Affidavit of Joe Tusa with attached transcript of Recorded Statement of May 7,
       2015;
    6. Records of Dr. Melanie Blake/Academic Internal Medicine;
    7. Medical Questionnaire of Dr. Melanie Blake;
    8. Wage Statement;
    9. Agreement Between Employer/Employee Choice of Physician form;
    10.Records ofDr. David D. Darden/Occupational Environmental Medicine;
    11.Records ofPam Taylor, RN/Dr. Jaime Recasens.


Technical record: 3

    1.   Petition for Benefit Determination;
    2.   Dispute Certification Notice;
    3.   Motion to Amend Dispute Certification Notice and Permit Employer Defense;
    4.   Order Granting Leave to Amend Dispute Certification Notice;
    5.   Request for Expedited Hearing;
    6.   Employer's Response to Request for Expedited Hearing Regarding Temporary
         Disability and Medical Benefits.




3
   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.




                                                      8
                           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 this the 29th
day ofNovember, 2016.


              Name                    Via Email               Service sent to:
Joshua Ward,                              X            Josh@masseyattorneys.com
Attorney
J. Bartlett Quinn,                        X            bguinn@chamblisslaw .com
Attorney



                                        P~h~~m-,-~--
                                        Court of
                                                  le-r-k -~-
                                                   ~
                                                         f-C_o_u_rt   __________
                                                       orkers' Compensation Claims




                                           9
