             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT KNOXVILLE

Tony Rucker,                                                 Docket No.: 2015-02-0126
           Employee,
v.                                                           State File No.: 71844-2014
Flexible Staffing Solutions of Tennessee,
              Employer,                                     Judge Pamela B. Johnson
And
American Zurich Insurance Company,
             Carrier.


                             COMPENSATION HEARING ORDER


        This matter came before the undersigned Workers' Compensation Judge on
December 3, 2015, for a Compensation Hearing, pursuant to Tennessee Code Annotated
section 50-6-239 (2015). Upon agreement of the parties and as set forth in the Agreed
Initial Hearing (Scheduling) Order, the Court bifurcated this cause and agreed to
adjudicate the issue of compensability and temporary benefits separately and prior to the
adjudication of the issue of permanent disability benefits. Accordingly, the central legal
issues are: (1) whether the employee, Tony Rucker, sustained an injury arising primarily
out of and in the course and scope of his employment with the employer, Flexible
Staffing Solutions of Tennessee; (2) whether Mr. Rucker is entitled to past or future
temporary dis·1bility benefits, and if so, in what amount; and (3) whether Mr. Rucker is
entitled to past r future medical benefits. 1 For the reasons set forth below, this C urt
finds that Mr. Rucker established by a preponderance of the evidence that he sustained a
compensable injury primarily arising out of and in the course and scope of his
employment with Flexible Staffing. Accordingly, the Court finds that Mr. Rucker is
entitled to temporary disability and medical benefits.

                                            History of Claim

       Mr. Rucker is a forty-eight-year-old resident of Campbell County, Tennessee.
Flexible Staffing employed Mr. Rucker as a laborer and assigned him to work at Eagle
1
  A complete listing of the technical record, stipulations, and exhibits admitted at the Compensation Hearing is
attached to this Order as an appendix.

                                                       1
Bend Manufacturing as an assembler. Prior to his employment at Flexible Staffing, Mr.
Rucker worked as a highway maintenance laborer, security officer, police officer, and
trained as an electrician and welder.

       At 3:15 a.m. on September 2, 2015, while working for Flexible Staffing at Eagle
Bend, Mr. Rucker pulled a part off the machine he operated when the right side of the
part hung up. Mr. Rucker testified, "My neck went back and popped and shot sharp pains
through my right shoulder." He reported the work incident to Sanford Miller, who is the
Third Shift Supervisor employed by Eagle Bend. Mr. Miller gave Mr. Rucker the option
to seek medical treatment at Occupational Health Systems (OHS) in Clinton, Tennessee.
Mr. Miller transported Mr. Rucker to OHS for evaluation. Neither Flexible Staffing nor
Eagle Bend provided Mr. Rucker a panel of physicians to select an authorized treating
physician (ATP).

       Mr. Rucker sought care at OHS on September 2, 2015, and saw Ronald Flowers, a
Physician's Assistant (PA). (Ex. 3A.) Mr. Rucker reported, "he was attempting to
remove a part that had become stuck from his machine," "with his hands placed around
mid abdomen, when he felt a pop in his neck and severe pain in his neck." !d. Mr.
Rucker complained of "pain in the right side of his neck" with "tingling and numbness in
both hands, extending down into his fingers." !d. PA Flowers obtained x-rays, and
instructed Mr. Rucker to apply ice and take Tylenol and Advil for the cervical spine
diagnoses of osteoarthritis, degenerative disc disease, and sprain. !d. PA Flowers and
Dr. John McElligott signed the September 2, 2015 medical note. 2

        OHS staff sent Mr. Rucker home and instructed him to return later the same day. 3
Mr. Rucker returned as instructed and reported that "overall, he was not improved." !d.
Mr. Rucker complained of pain in the right side of his neck, which he stated moved
further down his neck. He also continued to experience "tingling, numbness, and a cold
sensation in both of his hands, mostly in the right," and "discomfort when he attempted to
lift his right arm up, over his head." !d. He advised that he took the over-the-counter-
medication as instructed and "used ice packs on the affected area, with only marginal
relief." !d. OHS recommended six physical therapy visits. Only Dr. McElligott signed

2
  The September 2, 2015 medical note provided:
         The Designated Physician for this case is John McElligott, MD. This doctor has been assigned
         supervision of this case. The designated physician is physically present in the office during the
         evaluation and treatment of the employee. Team Based Medicine means that when patients are
         seen by Ron Flowers, PA-C, all findings including diagnostics are discussed with the designated
         physician while the employee/patient is still in the office. In addition, all treatment records are
         reviewed by the senior medical director regardless if seen by an MD or PA-C. After-hours cases
         seen by the PA-C are to be seen at the opening of the clinic ASAP that same day or the next
         working day. All Charts are E-signed by team members and medical director.
(Ex. 3A.)
3
  The September 2, 2015 medical note stated, "The patient is scheduled for a return visit[.] This patient is working
the IOpm to 6am shift, and was seen at 5am, he will need to be rechecked prior to his shift at IOpm tonight to
determine his functional capabilities. This will require two visits on the same day." (Ex. 3A.)

                                                         2
the later September 2, 2015 medical note.

       Mr. Rucker returned to OHS for physical therapy (PT). (Ex. 3A.) Mr. Rucker
completed six PT visits at OHS. On September 12, 2015, he advised the physical
therapist that his pain had decreased and was located only in the right shoulder. !d.

       After his sixth visit, Mr. Rucker returned to OHS on September 15, 2014. !d.
During the visit, Mr. Rucker reported very little improvement. !d. He continued to
complain of pain in his lower neck and tingling and numbness in both arms, extending
into both hands and fingertips. !d. The September 15, 2014 medical note provided:

         After review of the mechanism of injury [(MOl)] and/or lack thereof on all
         diagnoses listed for this evaluation now or related to this evaluation, I do
         not feel that this injury/exposure is Work related [sic]. See TN WC Law
         effective July 1, 2014, TN 50-6-102 (13). Pre-existing conditions are very
         likely or the MOl is not substantial to produce the present findings or lack
         of findings.

!d. OHS released Mr. Rucker from care without restrictions. !d. Both PA Flowers and
Dr. McElligott signed the September 15, 2014 medical note. 4

        Dr. McElligott completed a Standard Form Medical Report. (Ex. 3.) Dr.
McElligott noted that Mr. Rucker "was pulling a part from his machine when he felt a
pop in his neck, accompanied by pain in the neck." !d. at 1. Dr. McElligott further noted
that Mr. Rucker "treated at OHS with ice. OTC meds advised." !d. In the Standard
Form Medical Report, Dr. McElligott denied Mr. Rucker suffered any temporary total
disability as a result of the work injury, and he further opined Mr. Rucker reached
maximum medical improvement on September 15, 2014. !d. at 4. Considering Mr.
Rucker's medical history, diagnosis and treatment, and all other available information
regarding the onset and causes of his injury, Dr. McElligott denied that it is more likely
than not, as opposed to speculation or possibility, that Mr. Rucker's injury arose
primarily out of and in the course and scope of his employment. !d. Dr. McElligott
assigned no permanent medical impairment attributable to Mr. Rucker's work injury. !d.


4
  The September 15, 2015 medical note provided:
         The Designated Physician for this case is John McElligott, MD. This doctor has been assigned
         supervision of this case. The designated physician is physically present in the office during the
         evaluation and treatment of the employee. Team Based Medicine means that when patients are
         seen by Ron Flowers, PA-C, all findings including diagnostics are discussed with the designated
         physician while the employee/patient is still in the office. In addition, all treatment records are
         reviewed by the senior medical director regardless if seen by an MD or PA-C. After-hours cases
         seen by the PA-C are to be seen at the opening of the clinic ASAP that same day or the next
         working day. All Charts are E-signed by team members and medical director.
(Ex. 3A.)

                                                         3
       Mr. Rucker testified he never saw a doctor at OHS, denying that Dr. John
McElligott ever examined or treated him. Mr. Rucker further denied OHS ordered an
MRI or other diagnostic testing. Mr. Rucker admitted he was satisfied with his treatment
at OHS, with the exception of painful physical therapy. While he did not advise Flexible
Staffing of any dissatisfaction with the care received at OHS, he advised Leslie Crawford
at Flexible Staffing that the physical therapist was "hurting me more than they're helping
me." Mr. Rucker did not ask Flexible Staffing to send him to another doctor and did not
complain that his care at OHS was insufficient or inappropriate.

       While undergoing physical therapy, Flexible Staffing offered Mr. Rucker
alternative employment, receiving the same pay, which he performed by answering
phones in the office. After his last visit of physical therapy, Flexible Spending advised
Mr. Rucker that Eagle Bend did not require his services, and Flexible Staffing did not
offer Mr. Rucker further employment. Shortly thereafter, Flexible Staffing denied the
claim and did not offer further medical treatment.

        Mr. Rucker subsequently attempted to work two days at Sears, but could not
tolerate the physical job requirements. Mr. Rucker filed for unemployment benefits in
October 2014. The state denied his claim for unemployment benefits.

       Subsequently, Mr. Rucker sought unauthorized medical care from neurosurgeon,
Dr. Richard Boyer, on November 18, 2014. (Ex. 1A, November 18, 2014 Office Note.)
Mr. Rucker did not ask Flexible Staffing to approve his initial visit with Dr. Boyer and
did not advise Flexible Staffing that he received treatment with Dr. Boyer.

       During the initial visit, Mr. Rucker advised Dr. Boyer he worked on a machine at
Eagle Bend and reached to remove a part. When the right side of the part "hung up the
machine," his neck jerked back and he felt a pop in his neck with onset of pain. Mr.
Rucker described pain in the right side of his neck coming into the anterior part of his
right shoulder with some paresthesias and tingling in the back of the head into both arms
and down into his hands and fingers diffusely. Dr. Boyer ordered an MRI and injections.
Dr. Boyer ultimately performed a three-level decompression and fusion at C4 through C7
on April 22, 2015, for the post-operative diagnoses of cervical spondylosis and C6-7
herniated nucleus pulposus. (Ex. 1A, Operative Note.).

       Post-operatively, on May 21, 2015, Mr. Rucker reported continued numbness and
tingling in the right arm, extending from the second and third fingers up the arm and into
the elbow. On June 30, 2015, Mr. Rucker advised Dr. Boyer's office that "he was eating
a few weeks ago and felt a severe pop in the back of his neck, in the lower portion of his
neck and ever since then he started having a burning sensation into his right axilla area
which is a new complaint." On September 3, 2015, Dr. Boyer's office referred Mr.
Rucker to an orthopaedic physician for evaluation of his right shoulder.


                                            4
        Dr. Boyer testified by deposition he did not "explore with Mr. Rucker any other
causes or potential causes for the neck pain that he was experiencing besides this injury
that he reported." (Ex. 1 at 24.) Dr. Boyer agreed he did not explore at any time with
Mr. Rucker the mechanics of his injury or the details with regard to the alleged accident.
(Ex. 1 at 57.) When asked whether Dr. Boyer could state within a reasonable degree of
medical certainty that Mr. Rucker's neck injury occurred on September 2, 2014, Dr.
Boyer testified, "All I can say is that that's the history that he gave us that that's when the
pain began and the events that happened that started the pain off." !d. Dr. Boyer further
stated:

       Q. Doctor, did you see anything clinically with Mr. Rucker that led you to
       believe that the surgery that you performed was primarily related to the
       September 2 accident?

       A. Well, again, it's based on his report that that's when the injury began.

       Q. But my question was, did you see anything clinically that led you to
       believe that September 2 was the date of the injury, or that you were
       treating him for injuries that occurred on September 2?

       A. I think it's impossible to say that otherwise. If he had said the accident
       had been you know, August 31 5 \ I would say that it started August 31st.
       There's nothing about the exam or his story otherwise that would be
       specific to one date.

       Q. And by the same token, there's nothing that indicates that it did or did
       not occur on September 2, other than the history that he provided?

       A. That's correct.

       Q. Are there multiple other causes - excuse me, let me back up. Are there
       other causes of neck pain and herniation besides trauma?

       A. Sure. There are people who have no trauma at all and have pain. And
       there are patients who have, as I said, no herniation and have an event that
       starts off the symptoms. So it's difficult outside of the description of the
       history to give causation.

(Ex. 1 at 58-59.)

       Dr. Boyer testified further:

       Q. And considering Mr. Rucker's history; the diagnosis that you made; the

                                              5
         treatment that you rendered, including all the injections, and all other
         available information regarding the onset and the cause of his neck
         problems, you agree that its more likely than not that Mr. Rucker's injury
         arises primarily out of and in the course of his employment with respect to
         that herniated disk and the surgery you performed? Would you agree with
         that?

         [Objection omitted.] 5

         A. Well, I think that history seems to be consistent with that. And as that
         being the onset of the pain, the disk herniation we found at C6-7, as I've
         testified, it could be traumatic. But all those things, I think, you know, go
         along or are consistent with how he described it. But it's based on his
         report of history, yes.

         Q. Thank you. Now, in addition to that, and if we assume that then is true,
         then the medical treatment, the surgery you did, the hospitalization, and
         your referral to Dr. Casey, you would agree were reasonable and necessary
         and incidental as a result of that particular injury that occurred that's also
         documented by Nurse Caldwell in his notes, September 2, 2014? Would
         you agree with that?

         [Objection omitted.]

         A. Yes, I think that's reasonable to say.



         Q. Doctor, are the charges totally summarized and everything there
         [Exhibit 1C - Itemization of Bill] would be incidental to this injury as we
         previously described, reasonable and necessary, as a result of the injury for
         which you treated him; is that true?

         [Objection omitted.]

         A.       I believe so, yes.

         Q.   And those charges [surgery performed at University of Tennessee
         Medical Center] would have been reasonable and necessary and incidental
         as a result of the treatment that was rendered as a result of the injury as
5
 The parties stipulated to the admissibility of Dr. Boyer's deposition transcript without asking the Court to rule on
objections raised during the deposition. Accordingly, the Court omitted the objection raised to the testimony and the
discussion of counsel.

                                                         6
       well, correct?

       [Objection omitted.]

       A. I believe so.

(Ex.1 at70-71, 73.)

       During his deposition, Dr. Boyer testified that Mr. Rucker had not reached
maximum medical impairment. (Ex. 1 at 56.) Dr. Boyer additionally affirmed during his
deposition that, from the date of his termination on September 15, 2014, to the present,
Mr. Rucker "was totally unable to return to the job at Eagle Bend if it required him to
engage in heavy work and repetitive work on a daily basis." (Ex. 1 at 75-76.) Dr. Boyer
further agreed that Mr. Rucker was capable of performing light, sedentary-type work
during the same timeframe. (Ex. 1 at 76.)

      Mr. Rucker also received unauthorized care from orthopedic surgeon, Dr. Michael
Casey, who treated him for his right-shoulder complaints. Dr. Casey performed surgery
on Mr. Rucker's right shoulder. Dr. Casey's medical records were not introduced into
evidence at the Compensation Hearing.

        In the interim, Mr. Rucker underwent an independent medical examination with
Dr. C.M. Salekin on April 18, 2015. (Ex. 2A.) Mr. Rucker complained of "neck pain
with intermittent radiation to the right hand following an injury at work on 9-2-14." (Ex.
2A, April 18, 2015 Medical Note.) Mr. Rucker advised Dr. Salekin "while he was at
work on 9-2-14 at Eagle Bend Manufacturing Company at Clinton, Tn., he was pulling a
part off a machine weighing about 10-20 lbs when the part got hung onto the machine,
and Mr. Rucker suddenly twisted his neck and felt a 'pop."' !d. Dr. Salekin diagnosed
"[ m]ultiple cervical radiculopathies involving right C5, C6, C7 nerve roots caused by
injury at work on 9-2-14 with ongoing pain in the neck and weakness of multiple muscle
groups on the right upper extremity." !d. In his April 18, 2015 Standard Form Medical
Report and considering Mr. Rucker's medical history, diagnosis and treatment, and all
other available information regarding the onset and causes of his injury, Dr. Salekin
responded affirmatively it is more likely than not, as opposed to speculation or
possibility, that Mr. Rucker's injury arose primarily out of and in the course and scope of
his employment. (Ex. 2A.)

       Mr. Rucker returned to see Dr. Salekin on August 29, 2015, for a follow-up
independent medical examination. (Ex. 2B.) Dr. Salekin diagnosed (1) "[l]eft C4
radiculopathy due to disc protrusion at C3-C4 level caused by the injury at work on 9-2-
14 with residual signs and symptoms," and (2) "[m]ultiple cervical radiculopathies
caused by the injury at work on 9-2-14 involving right C5, C6, and C7 nerve roots status
post fusion with residual signs and symptoms." (Ex. 2B, August 29, 2015 Medical Note.)

                                            7
    In his August 29, 2015 Standard Form Medical Report and considering Mr. Rucker's
    medical history, diagnosis and treatment, and all other available information regarding
    the onset and causes of his injury, Dr. Salekin responded affirmatively it is more likely
    than not, as opposed to speculation or possibility, that Mr. Rucker's injury arose
    primarily out of and in the course and scope of his employment. (Ex. 2B.) Dr. Salekin
    further opined that Mr. Rucker suffered temporary total disability, beginning September
    2, 2014, and assigned restrictions. !d. He placed Mr. Rucker at maximum medical
    improvement on August 29, 2015. !d.

          By deposition, Dr. Salekin testified:

          Q. Have you considered anything at all about the shoulder to date?

          [Objection omitted.] 6

          A.     I think the new finding on the shoulder that he has not achieved
          maximum medical improvement, because I believe the shoulder injury is
          also sustained by the same event which caused the neck injury. And the
          reason for the delay in diagnosis of the shoulder injury is because - even
          for an expert neurosurgeon or orthopaedic surgeon, it is difficult to
          differentiate between C5 radiculopathy from [a] shoulder problem.
          Because pain from the neck due to C5 radiculopathy also radiates to the
          shoulder where the C5 dermatome is located, slightly below and around the
          shoulder.

(Ex. 2 at 60-61.)

       Mr. Rucker filed a Petition for Benefit Determination (PBD) on May 13, 2015,
seeking temporary disability and medical benefits. The parties did not resolve the
disputed issues through mediation, and the Mediating Specialist filed a Dispute
Certification Notice (DCN) on July 16, 2015. Mr. Rucker filed a Request for Initial
Hearing on July 29, 2015, and this Court entered an Agreed Initial Hearing Order on
September 21, 20 15. As set forth in the Agreed Initial Hearing Order, the Court
bifurcated this cause and agreed to adjudicate the issue of compensability and temporary
benefits separately and prior to the adjudication of the issue of permanent disability
benefits. This Court conducted the Compensation Hearing on the issue of compensability
on December 3, 20 15.

      At the Compensation Hearing, Mr. Rucker asserted he sustained an injury to his
neck and right shoulder arising primarily out of and in the course and scope of his
6
  The parties stipulated to the admissibility of Dr. Salekin 's deposition transcript without asking the Court to rule on
objections raised during the deposition. Accordingly, the Court omitted the objection raised to the testimony and the
discussion of counsel.

                                                           8
employment with Flexible Staffing. Dr. Boyer and Dr. Salekin opined that it is more
likely than not, as opposed to speculation or possibility, that Mr. Rucker's injury arose
primarily out of and in the course and scope of his employment. While Dr. McElligott
disagrees, his opinion is not entitled to a presumption of correctness because he was not
chosen from a panel of physicians. Flexible Staffing did not give Mr. Rucker a panel of
physicians from which he could select an authorized treating physician. Moreover, he
argued Dr. McElligott's opinion should be afforded little to no weight because he did not
physically evaluate or treat Mr. Rucker. Instead, he merely reviewed the findings and
records of PA Flowers. Additionally, Mr. Rucker argued he was not required to report to
Flexible Staffing his dissatisfaction with OHS' treatment or advise of his treatment with
Dr. Boyer and Dr. Casey because Flexible Staffing denied his claim.

       Flexible Staffing countered Mr. Rucker 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, Flexible Staffing averred that Dr. Boyer
made no inquiry into, or explored other causes of, Mr. Rucker's injury. Additionally, Dr.
Boyer never testified the September 2, 20 14 work incident was the primary cause of Mr.
Rucker's injury. Flexible Staffing further averred Dr. Salekin conceded it was difficult to
determine the cause of Mr. Rucker's injury and relied in great part upon the history
provided by Mr. Rucker.

       Flexible Staffing asserted Mr. Rucker's testimony is not credible and insufficient
to establish the necessary elements to entitle him to workers' compensation benefits. Dr.
McElligott confirmed in his Standard Medical Report, he saw Mr. Rucker. Additionally,
Dr. McElligott's signature was the only signature on the second visit conducted on
September 2, 2014, evidencing that he physically examined Mr. Rucker that day. Dr.
McElligott, who Flexible Staffing claimed is the authorized treating physician, opined
Mr. Rucker's injury was not caused by the September 2, 2014 work incident. Moreover,
Mr. Rucker did not offer any medical opinion, from Dr. Casey or otherwise, that his
right-shoulder injury was compensable.

                        Findings of Fact and Conclusions of Law

        The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially, and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2015). The employee in a workers'
compensation claim has the burden of proof on all essential elements of the claim. Scott
v. Integrity taffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS
24, at *6 (Tenn. Workers ' Comp. App. Bd. Aug. 18, 2015). "[A]t a compensation
hearing where the injured employee has arrived at a trial on the merits, the employee
must establish by a preponderance of the evidence that he or she is, in fact, entitled to the
requested benefits." Willis v. All Staff, No. 2014-05-0005, 2015 TN Wrk. Comp. App.

                                             9
Bd. LEXIS 42, at *18 (Tenn. Workers' Comp. App. Bd. Nov. 9, 2015). See also Tenn.
Code Ann. § 50-6-239(c)(6) (2015) ("[T]he employee shall bear the burden of proving
each and every element of the claim by a preponderance of the evidence.").

                                      Compensability

       To be compensable under the Workers' Compensation Law, an injury must arise
primarily out of and occur in the course and scope of the employment. McCaffery v.
Cardinal Logistics, No. 2015-08-0218, 2015 TN Wrk. Comp. App. Bd. LEXIS 50, at *8-
9 (Tenn. Workers' Comp. App. Bd. Dec. 10, 2015); see also Tenn. Code Ann. § 50-6-
102(14) (2015). The term "injury" is defined as "an injury by accident ... arising
primarily out of and in the course and scope of employment, that causes death,
disablement or the need for medical treatment of the employee." !d. For an injury to be
accidental, it must be "caused by a specific incident, or set of incidents, arising primarily
out of and in the course and scope of employment, and is identifiable by time and place
of occurrence." Tenn. Code Ann. § 50-6-1 02(14 )(A) (20 15).

       In the present case, Mr. Rucker testified that, on September 2, 2014, while
working for Flexible Staffing at Eagle Bend, he pulled a part off the machine he operated
when the right side of the part hung up. He then testified, "My neck went back and
popped and shot sharp pains through my right shoulder." This Court finds Mr. Rucker to
be credible. The Court concludes that Mr. Rucker established that he sustained an injury
to his neck "caused by a specific incident, or set of incidents," and "identifiable by time
and place of occurrence."

        The issue of compensability therefore turns to whether Mr. Rucker met his burden
to prove that his September 2, 2014 neck injury arose primarily out of and in the course
and scope of his employment. An injury "arises primarily out of and in the course and
scope of employment" only if it has been shown by a preponderance of the evidence that
the employment contributed more than fifty percent in causing the injury, considering all
causes.    Tenn. Code Ann. § 50-6-102(14)(B) (2015). 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 in causing the
death, 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 physician, it is more likely than not considering all
causes, as opposed to speculation or possibility. Tenn. Code Ann. § 50-6-102(14)(E)
(20 15). The opinion of the treating physician, selected by the employee from the
employer's designated panel of physicians, shall be presumed correct on the issue of
causation, but the presumption is rebuttable by a preponderance of the evidence. !d.            ..
       Here, Flexible Staffing did not provide Mr. Rucker a panel of physicians. As
such, Dr. McElligott's opinion is not entitled to a presumption of correctness on the issue

                                             10
of causation. Accordingly, this Court must weigh the opinions of the three medical
experts. A trial court generally has the discretion to choose which expert to accredit
when there is a conflict of expert opinions. Brees v. Escape Day Spa & Salon, No. 2014-
06-0072, 2015 TN Wrk. Comp. App. Bd. LEXIS 5, at* 14 (Tenn. Workers' Comp. App.
Bd. Mar. 12, 2015) (citing Kellerman v. Food Lion, Inc., 929 S.W.2d 333, 335 (Tenn.
1996); Johnson v. Midwesco, Inc., 801 S.W.2d 804, 806 (Tenn. 1990). In evaluating
conflicting expert testimony, a trial court may consider, among other things, "the
qualifications of the experts, the circumstances of their examination, the information
available to them, and the evaluation of the importance of that information through other
experts." !d. (citing Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn.
1991)).

        Dr. McElligott and medical providers at OHS first evaluated Mr. Rucker. OHS
medical providers obtained a history, performed a physical examination, and ordered x-
rays of the cervical spine and six visits of physical therapy. Dr. McElligott, a board-
certified internist, denied that it was "more likely than not, as opposed to speculation or
possibility, that Mr. Rucker's injury arose primarily out of and in the course and scope of
his employment." (Ex. 3.) Mr. Rucker argued that this Court should give little weight to
Dr. McElligott's opinion because he never physically examined or treated Mr. Rucker.
Flexible Staffing asserted that Dr. McElligott physically examined and treated Mr.
Rucker on at least one occasion, if not more, as evidenced by the second September 2,
2014 office visit and the Standard Medical Report he completed. The parties did not
offer into evidence Dr. McElligott's testimony.

       Dr. Boyer, board-certified in neurological surgery, began treating Mr. Rucker in
November 2014. Dr. Boyer obtained a history, conducted a physical examination, and
ordered injections and diagnostic testing including: cervical spine MRI scans (December
4, 2014, and July 27, 2015), a Nerve Conduction Study (EMG/NCV) (June 26, 2015), a
cervical spine CT scan (September 3, 2015), and periodic x-rays. Dr. Boyer performed
C4-C7 discectomy, osteophytectomy, and fusion on April 22, 2015, for cervical
spondylosis and C6-7 herniated nucleus pulposus. Dr. Boyer continues to treat Mr.
Rucker. Dr. Boyer testified by deposition and opined, based upon Mr. Rucker's history,
it is more likely that not that Mr. Rucker's neck injury arose primarily out of and in the
course of his employment. (Ex. 1 at 70-71.)

       Dr. Salekin, a board-certified neurologist, examined Mr. Rucker on two separate
occasions, once before and once after his neck fusion. Dr. Salekin reviewed and
summarized the findings of the x-rays, MRI scans, EMG/NCV, and operative report. Dr.
Salekin completed a Standard Medical Report following each examination and testified
by deposition. Dr. Salekin opined, "[C]onsidering Mr. Rucker's medical history,
diagnosis and treatment, and all other available information regarding the onset and
causes of his injury," "it is more likely than not, as opposed to speculation or possibility,


                                             11
that Mr. Rucker's injury arose primarily out of and in the course and scope of his
employment." (Ex. 2B.)

        In assigning weight to the medical opinions in this case, the Court gives greater
weight to the physicians having the most contact with Mr. Rucker. This Court finds Dr.
Boyer's testimony most persuasive. Flexible Staffing averred Dr. Boyer's testimony
failed to establish the necessary causal relationship between Rucker's employment and
his injury, because he denied considering other causes. This Court disagrees. A close
reading of Dr. Boyer's testimony reflects that Dr. Boyer only denied exploring with Mr.
Rucker other causes or potential causes. (Ex. 1 at 24, 59.) Dr. Boyer was not asked
whether he independently considered other causes or potential causes. Moreover, the
record reflects that Dr. Boyer, in fact, considered other causes or potential causes as
evidenced by the numerous diagnostic tests ordered. Specifically, Dr. Boyer testified at
length to the degenerative disc disease noted on the diagnostic test results. Dr. Boyer
opined that diagnoses were consistent with the September 2, 20 14 work incident and
injury Mr. Rucker described.

        Ultimately, Dr. Boyer opined that, based upon Mr. Rucker's history, it was more
likely than not that Mr. Rucker's neck injury arose primarily out of and in the course of
his employment. (Ex. 1 at 70-71.) Dr. Sale kin's opinion on causation supports Dr.
Boyer's conclusion as to the neck injury and establishes causation as to the right-shoulder
injury. (Ex. 2.) This Court gives little weight to Dr. McElligott's opinion on causation
based upon his limited, or non-existent, physical examination of Mr. Rucker and the
meager diagnostic test results underlying his opinion.

        In Kirk v. Amazon.com, Inc., No. 2015-01-0036, 2015 TN Wrk. Comp. App. Bd.
LEXIS 44, at *19 (Tenn. Workers' Comp. App. Bd. Nov. 16, 2015), the Tennessee
Workers' Compensation Appeals Board cited Bridgewater v. Adamczyk, 421 S.W.3d 617,
627 (Tenn. App. 2013), which held that the "preponderance of the evidence" lies in the
finding established "with greater convincing effect" by the evidence introduced at a
hearing. After careful consideration of the records as a whole, this Court concludes that
Mr. Rucker established, by a preponderance of the evidence, his September 2, 2014
injuries to his neck and right shoulder arose primarily out of and in the course or scope of
his employment with Flexible Staffing.

                             Entitlement to Medical Benefits

       Having found Mr. Rucker sustained a compensable neck injury, this Court turns to
the issue of entitlement to medical benefits. Under 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) (2015). "The injured employee shall accept the medical
benefits. . . provided that in any case when the employee has suffered an injury and

                                            12
expressed a need for medical care, the employer shall designate a group of three (3) or
more independent reputable physicians ... from which the employee shall select one (1)
to be the treating physician." Tenn. Code Ann. § 50-6-204(a)(3)(A)(i) (2015).

       However, "an employer who elects to deny a claim runs the risk that it will be held
responsible for medical benefits obtained from a medical provider of the employee's
choice and/or that it may be subject to penalties for failure to provide a panel of
physicians and/or benefits in a timely manner." McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *13 (Tenn.
Workers' Comp. App. Bd. Mar. 27, 2015); see also Bond v. Am. Air Filter, 692 S.W.2d
638 (Tenn. 1985). Moreover, when an employer initially fails to provide a panel of
physicians from which an employee might choose a treating physician, the employer
cannot belatedly seek to control selection of the treating physician by the late provision of
a panel. Lambert v. Famous Hospitality, Inc., 94 7 S. W.2d 852, 854 (Tenn. 1997).

       In this case, Flexible Staffing did not offer Mr. Rucker a panel of physicians from
which he could select an authorized treating physician, but it authorized and paid for his
treatment at OHS. Flexible Staffing later denied Mr. Rucker's claim, and did not offer
further medical treatment. Thereafter, Mr. Rucker sought medical care on his own with
Dr. Boyer and Dr. Casey. This Court concludes that Mr. Rucker is entitled to medical
treatment made necessary by his September 2, 2014 injuries to his neck and right
shoulder, in accordance with Tennessee Code Annotated section 50-6-204 (2015).
Flexible Staffing shall pay for Mr. Rucker's past medical expenses incurred and made
reasonably necessary by the September 2, 2014 neck injury. Dr. Boyer shall be the
authorized treating physician for the neck injury.

       This Court was not presented with evidence to conclude whether the medical
expenses incurred for the right shoulder were made reasonably necessary by the
September 2, 2014 injury. This Court reserves the issue of past medical expenses for the
right shoulder to be determined at a later date. Based upon the referral of Dr. Boyer, and
in accordance with Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii) (2015), Dr.
Casey shall be the authorized treating physician for the right-shoulder injury.

                       Eligibility for Temporary Disability Benefits

       The next issue this Court must consider is Mr. Rucker's eligibility for temporary
disability benefits. An injured worker is eligible for temporary disability benefits if: ( 1)
the worker became disabled from working due to a compensable injury; (2) there is a
causal connection between the injury and the inability to work; and (3) the worker
established the duration of the period of disability. Jones v. Crencor Leasing and Sales,
No. 2015-06-0332, 2015 TN Wrk. Comp. App. Bd. LEXIS __, slip op. at 4 (Tenn.
Workers' Comp. App. Bd. Dec. 11, 2015) (citing Simpson v. Satterfield, 564 S.W.2d 953,


                                             13
955 (Tenn. 1978). Temporary total disability benefits are terminated either by the ability
to return to work or attainment of maximum recovery. !d.

        Temporary partial disability benefits, a category of vocational disability distinct
from temporary total disability, is available when the temporary disability is not total.
!d.; see also Tenn. Code Ann. § 50-6-207(1)-(2) (2015). Specifically, "[t]emporary
partial disability refers to the time, if any, during which the injured employee is able to
resume some gainful employment but has not reached maximum recovery." !d. (citing
Williams v. Saturn Corp., No. M2004-01215-WC-R3-CV, 2005 Tenn. LEXIS 1032, at *6
(Tenn. Workers' Comp. Panel Nov. 15, 2005). Thus, in circumstances where the treating
physician has released the injured worker to return to work with restrictions prior to
maximum medical improvement, and the employer either ( 1) cannot return the employee
to work within the restrictions or (2) cannot provide restricted work for a sufficient
number of hours and/or at a rate of pay equal to or greater than the employee's average
weekly wage on the date of injury, the injured worker may be eligible for temporary
partial disability. !d.

       Here, Mr. Rucker testified that immediately following the September 2, 2014 work
injury, Flexible Staffing offered him accommodated duty through September 15, 2014.
After his last visit of physical therapy on September 15, 2014, Flexible Staffing advised
Mr. Rucker that Eagle Bend did not require his services and Flexible Staffing did not
offer Mr. Rucker further employment. With the exception of two days of work at Sears,
Mr. Rucker testified that he did not work after Flexible Staffing advised him that Eagle
Bend no longer required his services and did not offer him further work assignments.

        In consideration of Dr. Boyer's and Dr. Salekin's opinions as to Mr. Rucker's
ability to work only restricted duty following the September 2, 2014 work injury to the
present, this Court concludes that Mr. Rucker is entitled to temporary partial disability
benefits. Flexible Staffing shall pay Mr. Rucker temporary partial disability benefits
from September 16, 2014, to the present, taking into consideration the two days of
employment at Sears during this period. Flexible Staffing shall continue to pay Mr.
Rucker temporary disability benefits in accordance with Tennessee Code Annotated
section 50-6-207 (20 15).

IT IS, THEREFORE, ORDERED as follows:

     1. Mr. Rucker shall receive medical treatment made reasonably necessary by the
        September 2, 2014 injury and in accordance with Tennessee Code Annotated
        section 50-6-204 (20 15).

     2. Flexible Staffing shall pay Mr. Rucker's past medical expenses incurred and
        made reasonably necessary by the September 2, 2014 neck injury.


                                            14
     3. Dr. Boyer shall be the authorized treating physician for the neck injury.

     4. This Court reserves the issue of past medical expenses for the right shoulder to
        be determined at a later date.

     5. Dr. Casey shall be the authorized treating physician for the right-shoulder
        mJury.

     6. The amount of temporary disability benefit is $267.45 per week based on Mr.
        Rucker's average weekly wage of $401.17.

     7. Flexible Staffing shall pay Mr. Rucker temporary partial disability benefits from
        September 16, 2014, to the present, with the exception of the two days of
        employment at Sears during this period.

     8. Flexible Staffing shall continue to pay Mr. Rucker temporary disability benefits
        in accordance with Tennessee Code Annotated section 50-6-207 (20 15).

     9. Unless appeal of the Compensation 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 compliance with this Order to the
        Division 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.


ENTERED this the 21st day of Janu~~~                           JL   I'.JriL/



                                       # oN. PAMELA B. JOHNSON
                                                              1
                                         Workers' Compensation Judge

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."



                                            15
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 Expedited 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).



                                          16
                                     APPENDIX

Technical record:
   • Petition for Benefit Determination, filed May 13, 2015;
   • Dispute Certification Notice, filed July 16, 20 15;
   • Mr. Rucker's Notice of Intent to Use Standard Form Medical Report in Lieu of
      Deposition of Dr. Salekin, filed July 29, 2015;
   • Mr. Rucker's Motion to Compel Payment of Benefits, filed July 29, 20 15;
   • Request for Initial Hearing, filed July 29, 2015;
   • Flexible Staffing's Response in Opposition to Mr. Rucker's Motion to Compel
      Temporary Total Disability Benefits, filed August 3, 2015;
   • Order Dismissing Motion to Compel Payment of Benefits, entered August 25,
      2015;
   • Mr. Rucker's Second Notice of Intent to Use Standard Form Medical Report in
      Lieu ofDeposition ofDr. C.M. Salekin, filed September 8, 2015;
   • Flexible Staffing's Notice of Objection, filed September 10, 2015;
   • Initial Hearing Order, entered September 21, 2015;
   • Flexible Staffing's Notice of Intent to Use Standard Form Medical Report of Dr.
      John McElligott in Lieu of Deposition, filed November 16, 2015;
   • Mr. Rucker's Objection to Flexible Staffing's Use of Standard Medical Report in
      Lieu ofDeposition of Dr. John McElligott, filed November 17, 2015;
   • Mr. Rucker's Renewed Motion to Compel Payment of Benefits, filed November
      17, 2015;
  • Mr. Rucker's Pre Compensation Hearing Statement (unsigned), submitted
     November 17,2015, and
  • Parties' Pre-Bifurcated Compensability Only Hearing Statement (signed only by
     Flexible Staffing's attorney), filed November 25, 2015.

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.

Stipulated Findings of Fact of the Parties:
    • Mr. Rucker's alleged date of injury is September 2, 2014.
    • Mr. Rucker gave notice of the alleged injury to Flexible Staffing on September 2,
       2014.
    • Mr. Rucker is forty-eight years old and a resident of Campbell County, Tennessee.
    • Mr. Rucker completed the eleventh grade and obtained aGED.
    • Mr. Rucker's average weekly wage is $401.17, which results in a workers'
       compensation rate of $267.45 per week.
   • Mr. Rucker received authorized medical treatment with Occupational Health
       Systems for the injury of September 2, 2014.
                                          17
   •   Flexible Staffing paid medical expenses to Occupational Health Systems only.
   •   According to Dr. Richard P. Boyer, Mr. Rucker has not reached maximum
       medical improvement.
   •   Mr. Rucker did not receive temporary disability benefits.
   •   Mr. Rucker has not return to work for Flexible Staffing, earning the same or
       greater wage as he earned prior to the injury.

Stipulated Conclusions of Law of the Parties:
    • This claim is governed by the Workers' Compensation Law for the state of
       Tennessee.
    • An employment relationship existed between Mr. Rucker and Flexible Staffing.
    • Mr. Rucker provided proper, statutory notice of the alleged injury to Flexible
       Staffing.
   • Mr. Rucker filed the Petition for Benefit Determination within the applicable
       statute of limitations.

Exhibits:
   • EXHIBIT 1: Deposition Transcript of Dr. Richard P. Boyer;
   • EXHIBIT lA: Medical Records of Dr. Richard P. Boyer;
   • EXHIBIT lB: Curriculum Vitae of Dr. Richard P. Boyer;
   • EXHIBIT lC: Medical Expenses for Dr. Richard P. Boyer;
   • EXHIBIT 2: Deposition Transcript of Dr. C.M. Salekin;
   • EXHIBIT 2A: Standard Form Medical Report, Form C32, of Dr. C.M. Salekin,
      dated April 18, 20 15;
   • EXHIBIT 2B: Standard Form Medical Report, Form C32, of Dr. C.M. Salekin,
      dated August 29, 2015;
  • EXHIBIT 2C: Exhibits to Deposition ofDr. C.M. Salekin;
  • EXHIBIT 3: Standard Form Medical Report, Form C32, of Dr. John McElligott;
  • EXHIBIT 3A: Medical Records of Dr. John McElligott; and
  • EXHIBIT 4: Tony Rucker's Personnel Records (numbered 0014-0031).




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                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Compensation Hearing Order
was sent to the following recipients by the following methods of service on this the 21st
day of January, 2016.

           Name              Certified   Fax     Email   Service sent to:
                             Mail
David H. Dunaway, Esq.,                            X     dhdunaway@aol.com
Employee's Attorney

Neil M. Mcintire, Esq.                             X     nmcintire@howell-fisher .com
Employer's Attorney




                                            PENNY SHRUM, COURT CLERK
                                                w .courtclerk@tn. gov




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