     FILED
    Jan 17, 2019
   03:33 PM(ET)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
      Mr. Gasche offered a different version of the incident. He stated he met with Mr.
Creasman in December 2017 to discuss the smoking area relocation. He acknowledged
that Mr. Creasman disagreed with the decision and did not want to abide by it. Mr.
Gasche informed Mr. Creasman that the location of the smoking area was not a battle that
he could win, as the decision was final. At that point, Mr. Creasman stood up and
accused Mr. Gasche of threatening him.

       Another co-worker, Leonard Poole, witnessed the December incident. He agreed
that Mr. Creasman was upset that the smoking area had moved and indicated Mr. Gasche
approached Mr. Creasman to discuss the decision. Mr. Poole stated that, because Mr.
Creasman remained upset, Mr. Gasche offered to continue the conversation in private, at
which point Mr. Creasman claimed that Mr. Gasche threatened him.

       Immediately following the December incident, Mr. Creasman reported the
incident to the terminal manager, Roger Bible. Mr. Bible placed Mr. Gasche on leave
pending an investigation. Following the investigation, Mr. Bible determined that Mr.
Gasche had not acted in an aggressive, threatening, or improper way. Mr. Bible recalled
Mr. Gasche to work with no disciplinary action taken and paid Mr. Gasche for his time
off. Mr. Bible required Mr. Creasman and Mr. Gasche to avoid speaking to each other
and to review and sign USF Holland's harassment policy.

       Several days later, Mr. Creasman reported the incident to the police. The police
came to USF Holland, took Mr. Creasman's statement, and prepared a police report. The
police neither contacted nor interviewed Mr. Gasche.

       After the December incident, Mr. Creasman alleged that he became fearful for his
safety and began suffering from nervousness and anxiety. However, he did not seek
treatment following the incident and he did not miss any work.

       The second event occurred on April 5, 2018.                Mr. Creasman, whose
responsibilities included moving trailers around the yard, alleged Mr. Gasche improperly
parked his trailer. He reported Mr. Gasche's parking infraction to his supervisor, Michael
Johnson. When Mr. Gasche learned that Mr. Creasman reported him, Mr. Gasche began
yelling, making aggressive movements (pointing at him and "flipping [him] a bird"), and
came after Mr. Creasman, who was operating a yard truck. As Mr. Gasche approached,
Mr. Creasman put the yard truck in reverse in an attempt to flee. Using the radio, he
called for help and heard his supervisors respond and call off Mr. Gasche, who turned
and left.

       Mr. Creasman asserted he was afraid after the April incident, but he admitted that
he did not hear what Mr. Gasche was yelling over the noise of the yard truck. He also
admitted that Mr. Gasche did not make physical contact with him and stated there was no
way that Mr. Gasche could catch him in the yard truck.

                                            2
        For his part, Mr. Gasche said he had returned from a delivery and parked his
tractor in the yard. A co-worker informed him that Mr. Johnson wanted to see him.
When Mr. Gasche spoke with Mr. Johnson, he learned that Mr. Creasman complained
that Mr. Gasche was "instigating" other drivers to improperly park their trailers in the
yard, causing Mr. Creasman more work. Mr. Gasche told Mr. Johnson that he parked his
trailer in the same manner as the two drivers who arrived in the yard before him. Mr.
Gasche indicated that Mr. Johnson agreed that he properly parked his trailer.

       As he left the dock, Mr. Gasche saw Mr. Creasman in the yard and decided to
speak with him in an attempt to clear the air. As he walked toward Mr. Creasman, Mr.
Creasman smiled at him and "flipped [him] the bird." Mr. Creasman then stated twice
into the radio that Mr. Gasche was threatening him and backed the yard truck away. Mr.
Gasche denied that he threatened or yelled at Mr. Gasche or that he used profanity or
made obscene gestures.

       Several co-workers witnessed the April incident. Barry Hayes confirmed Mr.
Gasche's version of the incident. Another supervisor, Michael Woods, stated that he
heard Mr. Creasman yell over the radio, and immediately went outside, but he "did not
find any evidence to support Mr. Creasman's assertions that Mr. Gasche was either
aggressive or threatening or abusive towards Mr. Creasman or any other employee." Mr.
Bible conducted an investigation after learning of the incident and testified, "[He] could
not conclude that Mr. Gasche's conduct was inappropriate, much less threatening."

       After the April incident, Mr. Creasman immediately called 9-1-1. Again, the
police responded, took Mr. Creasman's statement, and prepared a report without
contacting or interviewing Mr. Gasche. After the police left, Mr. Creasman told Mr.
Johnson that he could not finish his shift and left. He has not worked since that date.

       Days later, Mr. Creasman notified USF Holland of his need for medical care and
advised that he initiated treatment with Dr. Jose Malagon on April 10. Dr. Malagon
determined that Mr. Creasman suffered from "PTSD, anxiety, and major depression from
a work-related incident at his employer USF Holland." Dr. Malagon took Mr. Creasman
off work and recommended he see a psychiatrist or psychologist.

        Based on Dr. Malagon's recommendation, Mr. Creasman began treatment with a
psychiatrist, Dr. C. Randall May. Dr. May responded to a questionnaire submitted by
Mr. Creasman's former attorney. He marked "yes" when asked whether the December
2017 incident and April 2018 incidents contributed more than fifty percent in causing Mr.
Creasman's mental injuries. He also placed Mr. Creasman off work through January 21,
2019. 1

1
 The November 6, 2018 off-work note stated, "To remain off work till 1/21/18." The Court presumes Dr.
May intended to write "I /21/ 19."

                                                 3
       USF Holland sent Mr. Creasman to a neuropsychologist, Malcom Spica, PhD., for
an independent neuropsychological examination. Dr. Spica interviewed Mr. Creasman
and his wife, reviewed records from Drs. Malagon and May, and conducted various tests.
Testing of mood symptoms resulted in findings consistent with symptom magnification.
Additionally, Dr. Spica determined it was not credible that Mr. Creasman believed his
coworker was going to cause him serious injury or death. Mr. Creasman admitted to Dr.
Spica that he did not hear the coworker threaten him, that the coworker did not have a
weapon, and that he and the coworker were not alone on the worksite. Dr. Spica also
found it was not credible that the coworker's actions or "angry look on his face" triggered
PTSD. Instead of a PTSD diagnosis, Dr. Spica concluded Mr. Creasman presented with
an adjustment disorder with mixed anxiety and depressed mood.

       Mr. Creasman also saw a psychiatrist, Dr. J. Sidney Alexander, for an independent
psychiatric evaluation at USF Holland's request. Dr. Alexander conducted interviews
similar to Dr. Spica, reviewed Mr. Creasman's medical records and Dr. Spica's report,
and conducted various testing. Dr. Alexander noted, "Mr. Creasman, both with Dr.
Spica's testing and with mine, showed extreme signs of exaggeration and malingering."
Dr. Alexander indicated that Mr. Creasman's history was inconsistent with PTSD, or a
true psychiatric disorder, caused by the work incidents. Dr. Alexander concluded, "My
opinion, within a reasonable degree of medical certainty, is that Mr. Creasman does not
have a psychiatric diagnosis, disorder, or any temporary or permanent impairment related
to his Workers' Compensation injury claims." Dr. Alexander diagnosed malingering.
Additionally, Dr. Alexander noted that Dr. May relied on Mr. Creasman's subjective
history and complaints to make his opinion without using objective testing to form his
opm1ons.

      During the hearing, Mr. Creasman acknowledged that it was not unusual for
dockworkers to curse while working or to witness loud disputes between supervisors and
employees.

                       Findings of Fact and Conclusions of Law

       At an Expedited Hearing, Mr. Creasman must present sufficient evidence
demonstrating that he is likely to prevail at a hearing on the merits. See McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27,
2015).

        In this case, Mr. Creasman seeks to recover benefits for an alleged mental injury.
The Tennessee Workers' Compensation Law defines a mental injury as "a loss of mental
faculties or a mental or behavioral disorder, arising primarily out of a compensable
physical injury or an identifiable work related event resulting in a sudden or unusual
stimulus[.]" Tenn. Code Ann. § 50-6-102(17) (2018).

                                            4
       However, the workers' compensation system "does not embrace every stress or
strain of daily living or every undesirable experience encountered in the duties of a
contract of employment." Guess v. Sharp Mfg. Co. of Am., 114 S.W.3d 480, 485 (Tenn.
2003). Therefore, Tennessee courts apply a two-part test in order to determine whether
an injury caused by mental or emotional stimulus is compensable. First, the injury must
stem from "an identifiable stressful, work-related event producing a sudden mental
stimulus such as fright, shock, or excessive unexpected anxiety." Second, "the event
must be extraordinary in comparison to the stress ordinarily experienced by an employee
in the same type of duty." Ireton v. Horizon Mental Health Mgmt., LLC, No. E2015-
00296-SC-R3-WC, 2016 Tenn. LEXIS 3 at *28 (Tenn. Workers' Comp. Panel Jan. 19,
2016).

        Here, Mr. Creasman claimed his mental injuries arose primarily out of the April
incident or from a combination of the December and April incidents. In both incidents,
he alleged Mr. Gasche threatened him by yelling, gesturing, and using profanity, which
caused him to suffer PTSD, anxiety, and major depression. However, Mr. Gasche denied
he threatened Mr. Creasman and the witnesses and subsequent investigations failed to
substantiate Mr. Creasman's claims. Moreover, Mr. Creasman admitted that Mr. Gasche
never physically struck him and that he did not hear what Mr. Gasche said during the
April incident. Therefore, the Court holds Mr. Creasman failed to come forward with
sufficient evidence that he suffered "an identifiable stressful, work-related event."

       Even assuming Mr. Gasche yelled and used profanity toward Mr. Creasman as he
claimed, his proof failed to show that the event was extraordinary. Mr. Creasman
admitted that it was not unusual to hear dockworkers using curse words while working or
to observe supervisors and co-workers yelling during an intense argument. As such, the
Court holds that Mr. Creasman failed to sufficiently demonstrate that "the event [was]
extraordinary in comparison to the stress ordinarily experienced by an employee in the
same type of duty."

       Finally, even ifthe proof was sufficient to establish that Mr. Creasman suffered an
extraordinary stressful, work-related event, the Court cannot find that the event produced
a "sudden mental stimulus such as fright, show, or excessive unexpected anxiety." Under
the Workers' Compensation Law, a compensable mental injury arises out of and occurs
in the course and scope of employment only if it has been shown to a reasonable degree
of medical certainty that the employment contributed more than fifty percent in causing
the need for medical treatment, considering all causes. See Tenn. Code Ann. § 50-6-
102(14)(B).

       On the issue of causation, the parties presented the Court with conflicting
opinions. Dr. Malagon determined that Mr. Creasman suffered from "PTSD, anxiety,
and major depression from a work-related incident at his employer USF Holland" and

                                            5
referred him to a psychiatrist or psychologist. Mr. Creasman's psychiatrist, Dr. May
marked "yes" when asked whether the December 2017 incident and April 2018 incidents
contributed more than fifty percent in causing Mr. Creasman's mental injuries. However,
there is no evidence that Dr. Malagon or Dr. May conducted any testing or considered
anything other than Mr. Creasman's subjective complaints.

       In contrast, Dr. Spica and Dr. Alexander conducted objective testing, reviewed
medical records and eyewitness accounts, and interviewed Mr. Creasman and his wife.
Dr. Spica determined it was not credible that Mr. Creasman believed his coworker was
going to cause him serious injury or death. Dr. Spica also found it was not credible that
the coworker's actions or "angry look on his face" triggered PTSD. Dr. Alexander
indicated that Mr. Creasman's history was inconsistent with PTSD, or a true psychiatric
disorder, caused by the work incidents. Dr. Alexander concluded that Mr. Creasman did
not have a psychiatric diagnosis related to his alleged work-related claims but was
malingering.

        When the parties present conflicting medical testimony, the Court may choose
which view to believe. See Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676
(Tenn. 1991). In doing so, the Court may consider the experts' qualifications, the
circumstances of their examination, the information available to them, and the evaluation
of the importance of that information by other experts.

        These factors overwhelmingly favor the opinions of Dr. Alexander and Dr. Spica
over those of Dr. May. Dr. Alexander considered Mr. Creasman's subjective complaints
as well as objective test results. Dr. Alexander reviewed eyewitness accounts and the
medical records, while Dr. May relied solely on Mr. Creasman's statements in reaching
his conclusion. For these reasons, the Court finds Dr. Alexander's opinion more
persuasive. Therefore, the Court holds Mr. Creasman failed to sufficiently demonstrate
that the alleged events and his employment contributed more than fifty percent in causing
the need for medical treatment, considering all causes.

        IT IS, THEREFORE, ORDERED that Mr. Creasman's claim against USF
Holland, Inc. and its workers' compensation carrier for the requested benefits is denied at
this time.

        This matter is set for a Status Conference on April 11, 2019, at 9:30 a.m. Eastern
Time. The parties must call 865-594-0091 or 855-543-5041 (toll-free) to participate in
the Status Conference. Failure to appear by telephone may result in a determination of
the issues without the party's participation.




                                            6
         ENTERED January 17, 2019.




                                         PAMELA B. OHNSON, JUDGE
                                         Court of Workers' Compensation Claims

                                  APPENDIX

The Court identified the following as the Technical Record :

   1.    Petition for Benefit Determination (Doc. Id. 6783)
   2.    Employee Correspondence - Medical Records (Doc. Id. 6782)
   3.    Employer Correspondence - Employment Record (Doc. Id. 6781)
   4.    Dispute Certification Notice (Doc. Id. 6780)
   5.    Request for Expedited Hearing (Doc. Id. 8004)
   6.    Docketing Notice for on the Record Determination (Doc. Id. 8658)
   7.    Motion for Additional Time (Doc. Id. 8872)
   8.    Employer's Position Statement/Brief (Doc. Id. 9269)
   9.    Employer's Rule 60.02 Motion for Relief from the Docketing (Doc. Id. 9268)
   10.   Objection to Request for Issuance of Decision on the Record (Doc. Id. 9266)
   11.   Agreed Order Extending Time for Filing Objection and Submitting Position
         Statements (Doc. Id. 9193)
   12.   Employee's Response to Employer's Rule 60.02 Motion for Relief and his
         Objection to the Filing of the Affidavits of James Gasche, Roger Bible, Barry
         Hayes, Leonard Poole, Jeff Roberts, and Dr. Martin Spica (Doc. Ids. 9968, 9967)
   13.   Objection to Introduction into Evidence of Two Photographs submitted as
         Employee's Collective Exhibit 2 (Doc. Id. 9339)
   14.   Objection to Introduction into Evidence of Knox County Sheriffs Office
         Reports of December 11, 2017 and April 5, 2018 (Doc. Id. 9338)
   15.   Objection to Admittance into Evidence Correspondence from Employee's
         Counsel, Roger Gilbert (Doc. Id. 9337)
   16.   Objection to Medical Records of C. Randall May, M.D. (Doc. Id. 9336)
   17.   Objection to Introduction into Evidence the Reports of the Clinton Family
         Physicians (Doc. Id. 9335)
   18.   Employee's Response to Employers' Rule 60.02 Motion for Relief from the
         Court's Docketing Notice for On-The-Record Determination Order and His
         Objection to the Filing of the Affidavits of James Gasche, Roger Bible, Barry
         Hayes, Leonard Poole, Jeff Roberts, and Dr. Martin Spica (Doc. Id. 9330)
  19.    Employee's Position Statement (Doc. Id. 9312)
  20.    Docketing Notice - Status Conference (Doc. Id. 9393)


                                            7
   21. Employee's Response to Employer's Objections to Use or Introduction into
       Evidence Certain Items submitted by Employee (Doc. Id. 9462)
   22. Employee's Response to Employer's Objection for Issuance of Decision on the
       Record and his Objection to the Filing of the Affidavits of James Gasche, Roger
       Bible, Barry Hayes, Leonard Poole, Jeff Roberts, and Dr. Martin Spica (Doc. Id.
       9452)
   23. Employer's Reply to Employee's Response to Employer's Objection to use or
       Introduction into Evidence Certain Items submitted by Employee (Doc. Id.
       9494)
   24. Order Granting Rule 60.02 Motion for Relief from Docketing Notice, Placing
       Evidentiary Objections in Abeyance, and Setting In Person Expedited Hearing
       (Doc. Id. 9610)
   25. Docket Notice - Expedited Hearing (Doc. Id. 9897)
   26. Motion to Withdraw as Employee's Counsel (Doc. Id. 9990)
   27. Employer's Response to Motion to Withdraw as Counsel (Doc. Id. 10113)
   28. Docketing Notice - Motion to Withdraw (Doc. Id. 10155)
   29. Order Granting Motion to Withdrawal (Doc. Id. 10576)
   30. Employee's Notice of Filing- Medical Records (Doc. Id. 11969)
   31. Employer's Motion for Extension of Time to File Additional Proof and
       Supplemental Position Statement (Doc. Id. 12556)
   32. Subpoenas - Hearing Testimony (Doc. Id. 12557)
   33. Affidavit of Vince Price (Doc. Id. 12657)
   34. Employer's Notice of Filing- Medical Report of Dr. Alexander (Doc. Id. 12741)
   35. Affidavit of J. Sidney Alexander (Doc. Id. 12740)
   36. Employer's Notice of Filing - Exhibits to Employee's Deposition (Doc. Id.
       12818)
   37. Employer's Notice of Filing- Deposition of Employee (Doc. Id. 12817)
   38. Affidavit of Michael Woods (Doc. Id. 12816)
   39. Employer's Witness and Exhibit List (Doc. Id. 12815)
   40. Employer's Supplemental Position Statement (Doc. Id. 12905)
   41. Employee's Notice of Filing- Statements (Doc. Id. 12938)
   42. Employee's Notice of Filing - Curriculum Vitae of Dr. Randall May (Doc. Id.
       12937)
   43. Order Granting Motion for Additional Time (Doc. Id. 13305)

The parties introduced the following exhibits:

   1.   Affidavit of Mr. Creasman
   2.   Deposition of Mr. Creasman
        • Attached Exhibits
   3.   Affidavit of Roger Bible
   4.   Affidavit of Leonard Poole
   5.   Affidavit of Jeff Roberts

                                            8
   6.    Affidavit of Vince Price
   7.    Affidavit of James Gasche
   8.    Affidavit of Barry Hayes
   9.    Affidavit of Michael Woods
   10.   Affidavit ofD. Malcolm Spica, Ph.D.
         • Affidavit
         • Curriculum Vitae
   11.   Independent Medical Report of Dr. J. Sidney Alexander
         • Affidavit
         • Curriculum Vitae
   12.   Personnel File of Mathew Creasman
   13.   Employee's Discovery Responses to Employer's Discovery Requests
   14.   Employer's Responses to Employee's Discovery Requests
   15.   Medical Records of Dr. Jose Malagon, Clinton Family Physicians
   16.   Medical Records of Dr. Randall May
   17.   Curriculum Vitae of Dr. Randal May
   18.   Statements Submitted by Mr. Creasman

                            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 January 17, 2019.

Name                           U.S. Mail,        Email   Service sent to:
                               First Class
Matthew Ryan Creasman,             x              x      1601 Hidden Hills Drive
Self-Represented Employee                                Clinton, TN 37716
                                                         Mcreasmanl 11     ahoo.com
Stephen K. Heard                                  x      skheard@cclawtn.com
Employer's Attorney




                                                     NI., Court Clerk
                                         WC.CourtClerk@tn.gov




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