                                                                                     FILED
                                                                                   Apr 01, 2020
                                                                                   07:15 AM(CT)
                                                                                 TENNESSEE COURT OF
                                                                                WORKERS' COMPENSATION
                                                                                       CLAIMS




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

 ERIC TUNSTALL,                                  )   Docket No. 2018-08-0301
          Employee,                              )
                                                 )
 v.                                              )   State File No. 6637-2017
                                                 )
 SAIA, INC.,                                     )
               Employer.                         )   Judge Deana Seymour


                            EXPEDITED HEARING ORDER


        Since 2017, Eric Tunstall sustained three back injuries. On two separate occasions,
a forklift struck him at work. In addition, he recently had a non-work-related car accident.
SAIA contended it provided Mr. Tunstall all benefits to which he was entitled for the
injury at issue and argued his current complaints were not related to his initial work
injury.

        The Court held an Expedited Hearing on March 11, 2020, to determine whether
SAIA owes Mr. Tunstall a new panel of spine specialists and temporary disability
benefits related to his January 2017 work accident. The Court concludes SAIA does not
for the reasons below.

                                    History of Claim

       Mr. Tunstall works for SAIA as a dock worker. On January 24, 2017, he injured
his back at work.

      Mr. Tunstall received treatment from Dr. John Hayes. He complained of right-
ankle pain and left-sided back pain. Dr. Hayes diagnosed a right-ankle ligament sprain
and lumbar contusion, and he recommended physical therapy and medication. He placed
Mr. Tunstall on modified duty until referring him to an orthopedic specialist.




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       Mr. Tunstall began treating with Dr. John Lochemes in March. Dr. Lochemes
ordered an MRI, which showed only chronic degenerative findings. Dr. Lochemes
released him at maximum medical improvement in April.

       In October, Mr. Tunstall returned to Dr. Lochemes with radicular complaints in
his right leg. Dr. Lochemes ordered a new MRI, which showed foraminal narrowing at
L4-5 and L5-S1. Mr. Tunstall received injections that temporarily relieved his back pain.
By January 2018, Dr. Lochemes noted that Mr. Tunstall had severe pain and radicular
symptoms on both sides. He referred him to a neurosurgeon.

       SAIA provided a panel of neurosurgeons, and Mr. Tunstall selected Dr. Laverne
Lovell. In April, Dr. Lovell diagnosed severe spondylitic disease and stenosis at L4-5 and
kept Mr. Tunstall on light duty. Dr. Lovell mentioned surgery but stated that Mr. Tunstall
was not symptomatic enough or interested in it. Therefore, he referred him to pain
management and ordered a functional capacity evaluation. The FCE concluded that Mr.
Tunstall could work at medium-level duty. Dr. Lovell released Mr. Tunstall at MMI on
June 6 without restrictions.

       SAIA provided a panel of pain management providers, from which Mr. Tunstall
chose Dr. Ryan McGaughey. Dr. McGaughey noted that Mr. Tunstall underwent physical
therapy and previous injections, which had not helped. According to Dr. McGaughey,
Mr. Tunstall’s legs had started “giving out.” He ultimately recommended a second
surgical evaluation by Dr. Lovell.

       In February 2019, Dr. Lovell reviewed updated MRIs and found nothing to
indicate surgery. He saw nothing he considered an injury from any work accident and
noted that the radiologist described the canal narrowing from L3-S1 as a congenital
finding. However, he recommended a second opinion because Mr. Tunstall was
“dissatisfied” with his opinion. Dr. Lovell concluded, “I am finished with the patient’s
evaluation, work up and treatment. I am releasing him. He stays at a full duty work status
and no follow-up is given.”

       Mr. Tunstall continued working for SAIA after his release, and on May 14, he
sustained another work-related back injury. He received authorized treatment from Dr.
Hayes, who immediately placed Mr. Tunstall on modified duty and referred him to an
orthopedic specialist. Mr. Tunstall selected Dr. Thomas Giel from a panel.

       Mr. Tunstall complained to Dr. Giel of low-back pain but noted his symptoms
were not new, just worse. Due to the complicated nature of the case, Dr. Giel
recommended that Mr. Tunstall obtain an independent medical examination with a spine
specialist who could determine which, if any, of his complaints stemmed from his new
injury and if he received sufficient treatment for the prior injury. He continued Mr.
Tunstall on restricted duty but discharged him from care.


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        In August, Mr. Tunstall attended an IME with Dr. Sam Murrell. 1 According to Dr.
Murrell, all the CT scans showed degenerative changes and no acute abnormalities. Dr.
Murrell found that Mr. Tunstall had no new injury from the May 2019 accident and
required no further treatment for that accident. Instead, he recommended follow-up with
Mr. Tunstall’s authorized doctor for the January 2017 injury. In a later note, Dr. Murrell
clarified that he referred Mr. Tunstall back to Dr. Hayes.

       On February 11, 2020, Mr. Tunstall injured his back again in a car accident. He
treated with Champion Orthopaedics, but the only record introduced from this treatment
was a work status report returning him to work on February 17.

       Mr. Tunstall returned to Dr. Hayes on February 17 and advised him of the car
accident. Dr. Hayes noted that Mr. Tunstall was treating with an orthopedic and that that
doctor would have to release Mr. Tunstall before Dr. Hayes could return him to full-duty
work.

       Mr. Tunstall testified that his symptoms have worsened, he felt like someone was
“punching” him in the back, and he started using a cane on his own because he was afraid
his legs might give out. Mr. Tunstall stated SAIA originally agreed to provide a second
opinion but had not done so.

       Mr. Tunstall said he has not worked much since his May 2019 injury. He worked
light duty from May 19 to October 1, but SAIA now requires a full-duty release before he
can return to work. According to Mr. Tunstall, Dr. Hayes will not return him to full duty
until he is released from the orthopedic. He asked the Court to order SAIA to provide a
panel of spine specialists, since Dr. Lovell will no longer treat him, and to pay temporary
disability benefits totaling $28,724.45.2 He claimed entitlement to temporary total
disability benefits from December 28, 2018, to February 28, 2019, and ongoing benefits
from October 2, 2019. He also claimed he is owed temporary partial benefits between
March 29 and May 22, 2019.

       In response, SAIA maintained that Dr. Lovell, Mr. Tunstall’s panel-selected
neurosurgeon whose causation opinion is presumed correct, found nothing in Mr.
Tunstall’s imaging studies that he considered work-related. In addition, it contended that
no record supported Mr. Tunstall’s claim that his current complaints are causally-related
to his January 2017 injury. Further, it argued that no record supported Mr. Tunstall’s
claim that he should be off work for his January 2017 injury. According to SAIA, Mr.

1
 Dr. Murrell’s report said that Mr. Tunstall presented for an IME, but the parties introduced a panel from
which Mr. Tunstall selected Dr. Murrell for his May 2019 work accident.
2
 The parties agreed to a compensation rate of $863.13 and that the carrier overpaid temporary disability
benefits by $920.81.


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Tunstall’s provider at Champion Orthopaedics released him to return to work on
February 17, 2020, after his car accident. Therefore, it claimed he could return to work.

                       Findings of Fact and Conclusions of Law

       At an Expedited Hearing, Mr. Tunstall must provide sufficient evidence from
which the Court can determine he is likely to prevail at a hearing on the merits. McCord
v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015). The Court holds Mr. Tunstall would not likely prevail at a hearing on
the merits regarding entitlement to a new panel or additional temporary disability
benefits.

       Mr. Tunstall argued that Dr. Lovell refused to treat him further. Therefore, he
claimed entitlement to a panel of spine specialists from which to choose a new authorized
physician.

       On the surface, this case is reminiscent of Limberakis v. Pro-Tech Security, Inc.,
2017 TN Wrk. Comp. App. Bd. LEXIS 53 (Sept. 12, 2017). Much like Dr. Park in
Limberakis, Dr. Lovell wrote in his February 2019 note, “I am finished with the patient’s
evaluation, work up and treatment. I am releasing him. He stays at a full duty work status
and no follow-up is given.” However, in Limberakis, compensability of the employee’s
injury was undisputed. Id. at *5. Here, compensability is contested, as SAIA claims that
authorized physician Dr. Lovell determined that Mr. Tunstall’s current complaints were
not related to his January 2017 work accident.

       Thus, to prevail on his request for additional medical treatment, Mr. Tunstall must
prove that his condition “arose primarily out of and in the course and scope of
employment.” Tenn. Code Ann. § 50-6-102(14)(A) (2019). 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
(50%) in causing the injury, considering all causes.” Tenn. Code Ann. § 50-6-102(14)(B).
Medical evidence is generally required to establish a causal relationship, “[e]xcept in the
most obvious, simple and routine cases.” Berdnik v. Fairfield Glade Cmty. Club, 2017
TN Wrk. Comp. App. Bd. LEXIS 32, at *10-12 (May 18, 2017). Under Tennessee Code
Annotated section 50-6-102(14)(E), “[t]he opinion of the treating physician, selected by
the employee from the employer’s designated panel of physicians pursuant to § 50-6-
204(a)(3), shall be presumed correct on the issue of causation but this presumption shall
be rebuttable by a preponderance of the evidence.”

       Applying these principles to the facts of this case, the Court holds this is not an
obvious, simple and routine case, and medical evidence is required to establish a causal
relationship. Moreover, Dr. Lovell’s causation opinion is presumed correct, as Mr.
Tunstall selected him from a panel. Dr. Lovell reviewed updated MRIs and concluded he


                                            4
observed nothing work-related. He also noted that the radiologist described the canal
narrowing from L3-S1 as a congenital finding.

       Mr. Tunstall presented no medical opinion to rebut Dr. Lovell’s causation
conclusion. He relied on Dr. Murrell’s August 23 report, but Dr. Murrell’s report simply
concluded that the May 2019 accident did not cause any new injury. While Dr. Murrell
recommended follow-up with the authorized physician for Mr. Tunstall’s January 2017
accident, he never specifically related Mr. Tunstall’s current complaints to the January
2017 accident. Mr. Tunstall pointed to the Impression/Plan section of Dr. Murrell’s report
to show the doctor related his stenosis at L4-5 to his work injury. The report states,
“Radiographic evidence of some degree of stenosis at L4-5 on related to his work
injury.” (Emphasis added). The Court finds it is unclear what Dr. Murrell meant by this
statement.

        Mr. Tunstall also relied on Dr. McGaughey’s recommendation for a second
surgical evaluation, Dr. Lovell’s recommendation for a second opinion, and Dr. Giel’s
recommendation for a spine surgeon evaluation. However, SAIA fulfilled Dr.
McGaughey’s recommendation when it sent Mr. Tunstall back to Dr. Lovell for an
evaluation in February 2019. Further, Dr. Murrell’s evaluation fulfilled Dr. Giel’s
recommendation. Finally, Tennessee Code Annotated section 50-6-204(a)(3)(C) only
entitles an employee to a second opinion when a physician recommends surgery. Here,
no doctor recommended surgery. Therefore, the Court holds that Mr. Tunstall did not
rebut Dr. Lovell’s causation opinion and further holds he has not presented sufficient
evidence to show a likelihood of prevailing at a hearing on the merits regarding
entitlement to a panel of spine specialists.

       As for temporary disability benefits, the proof shows that Dr. Lovell placed Mr.
Tunstall at MMI on June 6, 2018, and released him to full-duty work. Dr. McGaughey
did not change Mr. Tunstall’s work status during pain management from October 2018 to
February 2019. When Mr. Tunstall returned to see Dr. Lovell in February 2019, he kept
him on full-duty status, and Mr. Tunstall worked until his May 14 accident. After the
May 14 accident, Dr. Hayes and Dr. Giel placed him on restricted duty, and SAIA
accommodated those restrictions. Mr. Tunstall worked light-duty through October 1.



       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, 2015 TN
Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Mr. Tunstall introduced no proof
to show he was off work or under restrictions between December 28, 2018, and February
28, 2019, or between March 29, 2019, and May 13, 2019. Moreover, any temporary


                                            5
benefits that might be owed between May 14 and May 22 or after October 1 have not
been causally connected to his January 2017 injury. Thus, the Court holds that Mr.
Tunstall is not entitled to temporary disability benefits at this time.


       IT IS, THEREFORE, ORDERED as follows:

      1.       Mr. Tunstall’s request for medical and temporary disability benefits is
denied at this time.

       2.   This case is set for a telephonic Status Hearing on May 25, 2020, at 8:30
a.m. Central Time. You must call toll-free at 866-943-0014 to participate in the
hearing.

ENTERED April 1, 2020.



                                  ____________________________________
                                  Judge Deana C. Seymour
                                  Court of Workers’ Compensation Claims


                                      APPENDIX

Technical record:

TR1.   Petition for Benefit Determination
TR2.   Dispute Certification Notice, along with Employer’s additional disputed issues
TR3.   Request for Expedited Hearing, with Mr. Tunstall’s affidavit
TR4.   Employer’s Pre-Expedited Hearing Brief with attachments
TR5.   Employee’s Pre-Hearing Brief with attachments

Exhibits:

1.     Wage Statement
2.     Pay history log
3.     Temporary disability payment log
4.     Medical records filed by Employer on February 26, 2020
5.     Medical records filed by Employee on February 26, 2020
6.     Spreadsheet explaining agreed-upon average weekly wage and compensation rate
7.     Dr. Murrell’s February 11, 2020 note
8.     Dr. Hayes’s February 17, 2020 note


                                            6
9.    Five panels (Collective)
10.   Concentra record for February 17, 2020
11.   Champion Orthopaedics return to work slip
12.   Mr. Tunstall’s deposition


                            CERTIFICATE OF SERVICE

      I certify that a copy of this Order was sent as indicated on April 1, 2020.

  Name                       Certified    U.S.    Email Service sent to:
                              Mail        Mail
  Monica Rejaei,                                    X      mrejaei@nstlaw.com
  Employee’s Attorney
  Newton Anderson,                                  X      sna@spicerfirm.com
  Employer’s Attorney


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




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