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                                                                                                          Time 1:12 Pl.I
               TENNESSEE BUREAU OF WORKERS' COMPENSATION
              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT MEMPHIS

SIDNEY GLASS,                                                 )    Docket No. 2015-08-0638
         Employee,                                            )
v.                                                            )
FORD CONSTRUCTION CO.,                                        )    State File No. 75957-2015
         Employer,                                            )
And                                                           )
TWIN CITY FIRE INS. CO.,                                      )    Judge Amber E. Luttrell
         Insurance Carrier.                                   )


          EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


        This matter came before the undersigned Worker's Compensation Judge on April
25, 2017, upon the second Request for Expedited Hearing filed by Mr. Glass. The present
focus of this case is whether Mr. Glass is entitled to medical benefits for his alleged back
injury. 1 The central legal issue is whether Mr. Glass is likely to establish at a hearing on
the merits he sustained an injury arising out of and in the course and scope of his
employment. For the reasons set forth below, the Court holds Mr. Glass is likely to meet
this burden and is thus entitled to the requested benefits.

                                               History of Claim

      The parties' testimony and exhibits established the following facts at the hearing. 2
Mr. Glass, ninth-grade educated, worked almost exclusively in the construction field. He

1
  Mr. Glass also checked entitlement to temporary disability benefits as an issue on the Dispute Certification Notice.
However, Mr. Glass offered limited proof on the issue, and the parties offered no argument on the issue at the
hearing. Therefore, the Court considers the request waived at this time, but Mr. Glass may raise it as an issue at a
later date.
2
  In determining this claim, the Court takes judicial notice of testimony heard at the prior in-person Expedited
Hearing on March 2, 2016. See Hughes v. New Life Dev. Corp., 387 S. W.3d 453, 457 n.l (Tenn. 20 12), holding,
"we are permitted to take judicial notice of the facts from earlier proceedings in the same action." The parties also
agreed to the Court's consideration of Mr. Glass' prior testimony and offered the transcript of his prior testimony
into the technical record designated as T.R. 6.

                                                          1
worked for Ford Construction ("Ford") beginning in early 2013 on a concrete crew,
which involved pouring concrete on sidewalks and curbs, "pushing and pulling concrete,
leveling it out, brooming it, forming it up, driving stakes, and so forth."

        On September 4, 2015, Ford moved Mr. Glass to a different job on the asphalt
crew to lay blacktop on a new road. He alleged an injury to his back arising out of his
work activities that day. Mr. Glass testified he performed several jobs that day. He drove
a backhoe, walked behind the paver, and used a shovel and sledgehammer. Mr. Glass
explained that a truck full of asphalt material dumped chunks of asphalt into the paving
machine that were too large to go through the paver. Consequently, Mr. Glass had to pull
heavy asphalt chunks out of the paver with a shovel and use a sledgehammer to "bust
them up." Shortly after getting off work, Mr. Glass felt tightness in his upper left
buttocks, but did not think it was serious until his symptoms worsened over the weekend.
He went to the emergency room early Monday morning complaining of severe pain in his
left leg and low back radiating to the calf. He advised the symptoms began on Friday. 3
Mr. Glass testified that on the following day, Tuesday, he called his supervisor, Nick
Norris, and told him he hurt his leg and would not be at work, but Mr. Norris did nothing
for him. 4

        Mr. Glass sought follow-up treatment from his primary care physician at Ripley
Medical Clinic. He told Nurse Practitioner (NP) Patsy Crihfield he worked in
construction but did "not remember any event or injury precipitating his left low back left
leg pain last week." NP Crihfield took Mr. Glass off work for the rest of the week and
noted she would consider a "neuro" referral. At his next visit, NP Bradley Harrell ordered
an MRI, placed him on light-duty, and referred him to a neurosurgeon. Mr. Glass
subsequently returned to the clinic on September 14, still complaining of low back pain
radiating down his left leg. He saw NP Christy Tipton and advised her of his work for a
construction company "shoveling all day long," but denied an injury "that he knows of."

       According to the affidavit of Ford employee Lisa Keeling, Mr. Glass contacted her
on September 15, and "wanted to know whether his insurance through the company
would pay for an MRI." She advised him it would not since his deductible had not been
met. Ford's safety director, Collie Berry, stated in his affidavit that Mr. Glass contacted
him on September 15, and reported a work-related injury sustained on September 4,
which was his first notice of Mr. Glass' work injury. Mr. Glass also testified he told Mr.
Berry he thought he hurt his back swinging the sledgehammer.

      Following Mr. Glass' report of injury, Mr. Berry authorized an appointment for
Mr. Glass with Dr. Mark Harriman, an orthopedic surgeon, on September 16. Mr. Berry

3
    The Court notes the majority of the handwriting on the ER record is illegible.
4
 The Court understood Mr. Glass to say Monday was Labor Day and he was off work. He called his supervisor on
Tuesday, his next scheduled day to work.

                                                            2
drove him to the appointment. Dr. Harriman's note indicated Mr. Glass complained of
lumbar and left buttock pain resulting from "lifting, pulling, pushing, and
unknown/unsure." Under the "Assessment and plan" section of Dr. Harriman's record, it
reads "work place accident." Dr. Harriman ordered an MRI and diagnosed radicular
lumbar pain likely due to an L5 S 1 lumbar herniation on the left.

       Mr. Berry requested Mr. Glass undergo the MRI the same day at Memphis
Orthopedic, which required they wait several hours for the MRI appointment. While they
waited in Mr. Berry's truck, Mr. Berry gave Mr. Glass documents to sign, including a
panel of physicians that included Dr. Harriman. Mr. Glass indicated he did not know
what he signed because he was in severe pain. According to the MRI report, Mr. Glass
provided a history of "low back pain radiating down left leg while swinging a sledge
hammer 9/04/15. Evaluate for herniated disc." The MRI study revealed multiple
abnormal findings. On September 18, 2015, Ford denied Mr. Glass' claim. The Notice of
Denial indicated the basis for denial was "no accident arising out of employment."

       Thereafter, Mr. Glass continued treatment at Ripley Medical Center. He advised
NP Tipton on September 21, that he had been "doing this job shoveling for several years
but the pain did not start until the fourth." The providers at Ripley Medical subsequently
referred Mr. Glass to Dr. Todd Fountain at Semmes-Murphy Clinic. On September 28,
Dr. Fountain noted in his record that Mr. Glass reported he began experiencing pain on
September 4:

      He works shoveling asphalt for a living and stated that during the afternoon
      that continued to increase and then by the evening hours, he had severe pain
      extending from his back through his left lateral hip and buttock, left
      posterior thigh, as well as the lateral leg beyond the knee to the anterior
      aspect dorsum of his left foot.

Dr. Fountain examined Mr. Glass, reviewed his MRI study, diagnosed stenosis at L5 and
a disk herniation with nerve root compression at L4, and recommended surgery.

       Dr. Fountain drafted a letter setting forth his medical causation opinion. Dr.
Fountain first stated Mr. Glass requires surgical decompression for the L4 and L5 nerve
roots. Upon review of the available record, he concluded,

      Mr. Glass sustained the injuries to his lumbar spine outlined above while in
      the course and copy of his employment with Ford Construction on
      September 4, 2015. It is my opinion, within a reasonable degree of medical
      certainty, that the shoveling of asphalt and busting up asphalt with a sledge
      hammer is more than not the primary cause of the back injuries outlined
      above.


                                            3
      Mr. Glass has not worked since Ford terminated his employment on October 12,
2015, due to a positive drug screen for methadone. He testified he was enrolled in a
methadone clinic for two years after developing an addiction to prescription pain
medication and stated Ford knew about his enrollment. According to Mr. Glass, he
became addicted to medication prescribed by Christian Family Medical for boils.

        At the hearing, Mr. Glass contended his back injury arose out of his work
activities on September 4, specifically shoveling and using the sledgehammer to bust up
the asphalt. He contended he was honest with medical providers that he could not recall
one acute event that caused the injury; however, he advised Mr. Berry, Dr. Harriman, and
Dr. Fountain about working with the sledgehammer on September 4. Mr. Glass requested
medical benefits for his back injury with Dr. Fountain as his treating physician. Ford
denied Mr. Glass is entitled to any workers' compensation benefits. It contended he is not
likely to establish a specific injury at a hearing on the merits. Ford's counsel also asserted
as a defense in closing argument that Mr. Glass was terminated for "violation of company
drug free workplace policy" based upon a positive drug screen for methadone on
September 16.

       Mr. Glass initially filed a Request for Expedited Hearing on December 23, 2015.
Judge Jim Umsted heard the request and denied benefits, holding Mr. Glass failed to
identify a specific incident that caused his injury and to provide an expert medical
opinion causally relating Mr. Glass' condition to the alleged work incident. Mr. Glass
subsequently obtained additional medical evidence and filed a second Request for
Expedited Hearing on January 17, 20 17, which is now before the Court.

                        Findings of Fact and Conclusions of Law

       To be compensable, Mr. Glass must show his alleged injury arose primarily out of
and in the course and scope of his employment and that it was caused by an incident, or
specific set of incidents, identifiable by time and place of occurrence. Further, he must
show, "to a reasonable degree of medical certainty that [his 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) (2016).

       However, because this case is in a posture of an Expedited Hearing, Mr. Glass
need not prove every element of his claim by a preponderance of the evidence in order to
obtain relief. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (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. !d.; Tenn. Code Ann. § 50-6-239(d)(l).




                                              4
                                                     Analysis

       The Court first notes that Ford presented no testimony or other proof disputing Mr.
Glass' description of the events of September 4 or his symptoms that developed that day.
Rather, Ford argued Mr. Glass did not sustain a work injury on September 4 because he
candidly testified his symptoms did not develop immediately while working, but instead
began shortly after he returned home from work that day. Further, he could not point to
an acute event when he initially sought treatment. Thus, Ford contended, these facts
preclude Mr. Glass from entitlement to benefits. The Court disagrees.

       The Court observed Mr. Glass' demeanor during the hearing and finds him
credible. The Court finds Mr. Glass performed a different job on September 4, and used a
shovel to remove heavy asphalt from the paving machine and a sledgehammer to bust it
up. Shortly after leaving work, Mr. Glass experienced pain in his upper left buttock that
progressively worsened over the weekend. While the emergency room record did not
appear to list a specific injury, the record indicated Mr. Glass reported his symptoms
began on Friday, which is consistent with the injury date. Moreover, it was undisputed
that within eleven days of the injury date, Mr. Glass reported to his safety manager, Mr.
Berry, that he believed the work with the sledgehammer on September 4 caused his pain.

        The Court further finds Dr. Harriman noted Mr. Glass' injury resulted from lifting,
pulling, and pushing, while the MRI report from Dr. Harriman's office was more specific
and stated he "developed low back pain radiating down left leg while swinging a
sledgehammer on September 4." In sum, the Court finds Mr. Berry's affidavit and the
totality of the medical proof corroborate Mr. Glass' testimony. Thus, the Court holds Mr.
Glass came forward with sufficient evidence from which this Court concludes he is likely
to prevail at a hearing on the merits in establishing an injury caused by a specific set of
incidents on September 4, 2015. 5

        Having so found, the Court turns to whether Mr. Glass came forward with
sufficient medical evidence to prove the injury is the primary cause of his symptoms and
need for medical treatment. The Court holds Mr. Glass also met this burden. Mr. Glass
offered a causation letter from Dr. Fountain wherein Dr. Fountain concluded, within a
reasonable degree of medical certainty, that Mr. Glass' shoveling of asphalt and busting
up asphalt with a sledgehammer was "more than not the primary cause of his back
injuries" noted in his letter. Moreover, Dr. Fountain concluded Mr. Glass requires surgery
for his back injuries. Based upon Dr. Fountain's opinion, the Court holds Mr. Glass came
forward with sufficient medical proof establishing, "to a reasonable degree of medical
certainty that it contributed more than fifty percent (50%) in causing the ... disablement

5
  The Court notes Ford alluded to a possible intoxication defense, for the first time, in its closing argument at the
hearing based upon Mr. Glass' positive drug screen on September 16. Ford offered no proof at either hearing of its
status as a Tennessee Drug Free Workplace, and the Court notes Ford did not raise any such defense in the Dispute
Certification Notice filed on December 16,2015. Thus, the Court declines to consider this defense.

                                                         5
or need for medical treatment, considering all causes." Tenn. Code Ann. §50-6-
102(14)(C).

                                     Medical Benefits

       Having found Mr. Glass is likely to prevail at a hearing on the merits, the Court
must address his request for medical benefits. Under the Workers' Compensation Law,
"the employer or the employer's agent shall furnish, free of charge to the employee, such
medical and surgical treatment ... made reasonably necessary by accident[.]" Tenn.
Code Ann. § 50-6-204(a)(l)(A) (2016). Further, when an employer initially fails to
provide a panel of physicians from which an employee might choose a treating physician,
then such employer cannot belatedly seek to control selection of the treating physician by
the late provision of a panel. Lambert v. Famous Hospitality, Inc., 947 S.W.2d 852
(Tenn. 1997).

       Here, Ford asserted it gave Mr. Glass a panel on September 16, and if the Court
awarded benefits, Mr. Glass should be required to see a panel physician. Based on the
undisputed testimony of Mr. Glass, the Court disagrees and finds Mr. Glass did not
actually select Dr. Harriman from a panel. The Court accepts Mr. Glass' testimony that
he was in such pain after his visit with Dr. Harriman that he was unaware he even signed
a panel in the stack of documents Mr. Berry asked him to sign. Moreover, the Court notes
Ford's panel of physicians offered into evidence is illegible; thus the Court cannot
determine if Ford attempted to offer a panel of surgeons to treat Mr. Glass' herniated
lumbar disc. The records indicated Dr. Fountain conducted a thorough evaluation and
concluded that Mr. Glass requires a surgical decompression of the L4 and L5 nerve roots.
Ford did not dispute Dr. Fountain's qualifications. For these reasons, the Court holds Mr.
Glass is entitled to continuing treatment for his back injury, including any reasonable and
necessary surgery, with Dr. Fountain as his authorized physician.

IT IS, THEREFORE, ORDERED as follows:

   1. Ford Construction Co. shall provide Mr. Glass with medical treatment made
      reasonably necessary by his back injury and in accordance with Tennessee Code
      Annotated section 50-6-204 (2016). Dr. Fountain shall be designated the
      authorized treating physician.

   2. This matter is set for a Status Hearing on July 24, 2017, at 10:00 a.m. Central
      Time. You must call toll-free 855-543-5039 to participate in the hearing.

   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) (2016). The Insurer or Self-Insured

                                            6
        Employer must submit confirmation of compliance with this Order to the
        Bureau by email to WCCompliance.Program@tn.gov 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.




                                          Da:. ~ 9ili~~~
                                          JUDGE AMBER           E.UTTREi
                                          Court of Workers' Compensation Claims

                                              APPENDIX

Exhibits:
   1. Affidavit of Sidney Glass
   2. Affidavit of Lisa Keeling
   3. Affidavit of Collie Berry
   4. First Report oflnjury
   5. Agreement Between Employer/Employee Choice of Physician
   6. Notice ofDenial of Claim for Compensation
   7. Wage Statement
   8. Separation Notice
   9. Drug Test Result
   10. Job description
   11. Ripley Medical Clinic medical bill
   12. Medical Records (collective)
   13. Semmes-Murphey Clinic medical records dated 9/28/2015
   14. Dr. Todd Fountain's medical records and causation letter (collective)


Technical record: 6
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing filed December 12, 2015
   4. Expedited Hearing Order Denying Request for Benefits
   5. Request for Expedited Hearing filed January 17, 2017

6
  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.



                                                      7
   6. Transcript of Expedited Hearing of March 2, 2016
   7. Pre-Hearing Statement for Employee


                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on this the 19th day of May, 20 17.


            Name                 First    Via                 Service sent to:
                                 Class   Email
                                 Mail
JeffBoyd, Esq.,                            X       jboyd@borenandboyd.com
Attorney for Employee                              sbland@borenandboyd.com
Matthew W. Willis, Esq.,                   X       matt@ashleyarnold.com
Attorney for Employer




                                          4f/;!.t::urt
                                          Court o r    orkers' Compensation Claims




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