                                                                                                      FILED
                                                                                                   July 27~20 1 7

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                                                                                                    Time 10:13 M1.1
               TENNESSEE BUREAU OF WORKERS' COMPENSATION
              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT JACKSON

BRADLEY WILSON,                                         )    Docket No. 2015-07-0143
        Employee,                                       )
v.                                                      )    State File No. 50922-2015
                                                        )
DANA HOLDING CORPORATION,                               )    Judge Amber E. Luttrell
        Employer.                                       )


                 COMPENSATION HEARING ORDER
     GRANTING EMPLOYER'S MOTION FOR INVOLUNTARY DISMISSAL
        UNDER TENNESSEE RULE OF CIVIL PROCEDURE 41.02(2)


       This matter came before the Court on June 22, 2017, for a Compensation Hearing.
The central legal issues are whether Bradley Wilson met his burden of establishing by
expert medical proof that his bilateral carpal tunnel injury arose primarily out of and in
the course and scope of his employment at Dana Holding Corporation (Dana) and
whether Mr. Wilson gave proper notice of a work injury.

       For the following reasons, the Court holds that Mr. Wilson did not establish by a
preponderance of the evidence that he sustained an injury primarily arising out of and in
the course and scope of his employment with Dana. Accordingly, the Court grants Dana's
motion for involuntary dismissal under Rule 41.02(2).

                                             History of Claim 1

                                     Facts and Procedural History

      Mr. Wilson worked for Dana as a press operator for three years. He worked on a
production line assembling oil coolers, where he performed the same tasks repetitively,

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   In determining this claim, the Court takes judicial notice of testimony heard at the prior in-person Expedited
Hearing. See Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 457 n.l (Tenn. 2012) ("we are permitted to take
judicial notice of the facts from earlier proceedings in the same action").
often for eleven hours per day. He testified he regularly used a rubber mallet to remove
pieces off a fixture during the assembly process and worked five to seven days almost
every week. Mr. Wilson alleged an injury to both wrists diagnosed as carpal tunnel
syndrome, which he associated with his repetitive, strenuous work and extensive weekly
work hours.

       Mr. Wilson initially sought treatment from his family physician, Dr. Ken Berry,
for shoulder and hand complaints and took intermittent FMLA leave from work. Dr.
Berry ultimately referred Mr. Wilson to Dr. Blake Chandler, an orthopedist, for
evaluation of his complaints. Following a nerve conduction study, Dr. Chandler
diagnosed moderately severe bilateral carpal tunnel syndrome on May 13, 2015.

        Prior to his carpal tunnel diagnosis, Dana terminated Mr. Wilson's employment on
May 1, 2015, for violation of its attendance policy. According to Dana, Mr. Wilson was
scheduled to return to work from FMLA leave on April 29, 2015; however, he did not
return and did not contact Dana for three consecutive days contrary to its attendance
policy.

        Mr. Wilson notified Dana of his alleged work injury by letter dated June 4, 2015.
The letter advised Dana of his carpal tunnel diagnosis, requested a panel of physicians,
and requested to file a workers' compensation claim. Mr. Wilson also sent an email dated
June 5, 2015, to Ms. Andrea Gooch, Dana's Human Resources Manager, reporting an
injury and requesting a panel. Dana did not offer Mr. Wilson a panel. Instead, it denied
the claim, stating the basis as "late reporting and no report of an accident."

                                First Expedited Hearing

        Mr. Wilson filed an expedited hearing request seeking medical and temporary
disability benefits. Following an evidentiary hearing, the Court held Mr. Wilson was
likely to prevail at a hearing on the merits regarding the issues of notice and medical
causation, ordered medical benefits, and denied temporary disability benefits. The Court
held Mr. Wilson gave adequate notice of his work injury and came forward with
sufficient medical proof, based on Dr. Berry's opinion from which the Court concluded
he was likely to prevail at a hearing on the merits.

        Specifically, the Court determined Dr. Berry and Dr. Chandler provided the only
expert opinions addressing medical causation. Mr. Wilson selected neither doctor from a
panel. Thus, neither opinion carried a statutory presumption of correctness. Dana relied
on Dr. Chandler's opinion, who responded in a letter, "I cannot say with any medical
certainty that the bilateral carpal tunnel syndrome is more than 50% caused by his work."
Mr. Wilson relied on Dr. Berry's opinion, who stated in an affidavit, "It is my
professional opinion, considering Mr. Bradley Wilson's past medical and work history,
that his most recent employment as a Press Operator for Dana Corporation; [sic] is the

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sole cause for his severe bilateral carpal tunnel syndrome."

       The Court weighed the conflicting opinions and found Dr. Chandler's opm10n
lacking because it failed to state any basis for his opinion nor did it indicate he was aware
of Mr. Wilson's job position at Dana or his work duties. In contrast, the Court held Dr.
Berry's opinion more persuasive based on his familiarity with Mr. Wilson's job at Dana
and duties as a press operator, his knowledge of Mr. Wilson's medical history, and his
unequivocal opinion that Mr. Wilson's work as a press operator was the sole cause for his
severe bilateral carpal tunnel syndrome.

        Under the expedited hearing order, Dana provided Mr. Wilson a panel, from
which he selected Dr. Michael Dolan for treatment. Dr. Dolan confirmed the diagnosis of
bilateral carpal tunnel syndrome and performed surgery on Mr. Wilson's arms. The
parties agreed that Dana initiated temporary total disability benefits during his treatment
with Dr. Dolan. Dr. Dolan released Mr. Wilson at maximum medical improvement on
August 25, 2016, following extensive post-operative treatment. Dr. Dolan assigned a
three-percent permanent impairment rating to the body as a whole.

                                Second Expedited Hearing

        Dana filed a second expedited hearing request captioned "Motion to Terminate
Temporary Total Disability Benefits." Dana asserted it initiated temporary total disability
payments while Dr. Dolan had Mr. Wilson on restricted duty. Dana submitted it
continued paying temporary benefits beyond Mr. Wilson's attainment ofMMI on August
25, 2016, because it was unsure whether it could terminate temporary disability benefits
absent a court order and whether Tennessee Code Annotated 50-6-234 applied. The Court
held an evidentiary hearing where Mr. Jason Almand, Dana's Health and Safety
Manager, testified that Dr. Dolan released Mr. Wilson to work with a twenty-pound
lifting limit on June 27, 2016. He further testified that Dana could have accommodated
Mr. Wilson's restriction but for the violation of Dana's attendance policy. Ms. Gooch
also testified by affidavit regarding the attendance policy and the circumstances
surrounding Mr. Wilson's termination.

        Following the second expedited hearing, the Court held Dana presented sufficient
proof that Mr. Wilson's actions precipitating his dismissal qualified as misconduct under
ordinary workplace rules and his violation of the attendance policy was the true
motivation for his termination. The Court concluded Mr. Wilson's entitlement to
temporary disability benefits ceased on June 27, 2016. The Court further held Tennessee
Code Annotated 50-6-234(b) (20 15) did not apply in this case and Mr. Wilson was not
entitled to additional temporary disability subsequent to his attainment ofMMI.




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                                   Summary Judgment

       Following the completion of Mr. Wilson's treatment, Dana took Dr. Dolan's
deposition for its expert medical proof. In his deposition, Dr. Dolan testified in a couple
of different ways that he "cannot state that Mr. Wilson's employment at Dana was more
than fifty-percent responsible for his carpal tunnel complaints." As a basis for his
opinion, Dr. Dolan testified, "The underlying cause of carpal tunnel is unknown." Dana
also obtained Dr. Chandler's C-32, in which he checked "no" to the question, "Was the
employment activity more likely than not, primarily responsible for the injury or
primarily responsible for the need for treatment?"

       Subsequently, Dana filed a Motion for Summary Judgment and contended Mr.
Wilson's evidence was insufficient to establish the essential element of medical
causation. Specifically, Dana argued Dr. Berry's causation opinion was insufficient to
overcome the statutory presumption of correctness afforded Dr. Dolan's opinion. In
opposing Dana's motion, Mr. Wilson relied on Dr. Berry's causation opinion and
disputed that Dr. Dolan was familiar with his work duties when he gave his causation
opinion. Based on the proof produced by Mr. Wilson at the summary judgment stage, the
Court denied the motion.

                                 Compensation Hearing

       At the Compensation Hearing, Mr. Wilson testified he has not sought additional
medical treatment for his carpal tunnel condition since Dr. Dolan released him. Mr.
Wilson has not worked for another employer since his termination from Dana. He
currently works odd jobs for income for his family and estimated he earns on average
"anywhere from $500 to $1,000 per month."

       Regarding causation, Mr. Wilson did not submit an expert medical opinion from
Dr. Berry or any physician into evidence stating that his carpal tunnel injury arose
primarily out of his employment at Dana. Instead, Mr. Wilson challenged Dr. Dolan's
medical opinion by testifYing that Dr. Dolan informed him at his first visit that he was to
provide treatment for Mr. Wilson's condition and not a causation opinion. Mr. Wilson
further challenged Dr. Dolan's and Dr. Chandler's causation opinions, arguing neither
doctor knew his specific job duties at Dana. For these reasons, Mr. Wilson contended
their opinions lacked credibility and the Court should not consider them.

      At the close of Mr. Wilson's proof, Dana moved for Involuntary Dismissal under
Tennessee Rule of Civil Procedure 41.02(2). The Court took the motion under
advisement and allowed Dana to present its evidence.

       For its proof, Dana renewed its notice argument and contended Mr. Wilson did not
establish medical causation. In support of its notice defense, Dana employees Keith

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Henegar, Ms. Gooch, and Mr. Almand testified.

      Mr. Henegar testified he was formerly "over all [Dana] maintenance employees,"
and Mr. Wilson "never reported issues with his hands to him." On cross examination, Mr.
Henegar testified he did not have direct contact with Mr. Wilson very often, stating he
was "spread pretty thin over three buildings."

        Ms. Gooch was the custodian of personnel records for the plant. She testified
regarding the circumstances surrounding Mr. Wilson's FMLA leave and termination. She
also testified regarding her receipt of Mr. Wilson's June 4, 2015 letter, in which he first
notified Dana of his alleged work injury. Prior to the letter, she stated she had no notice
of his injury.

       Mr. Almand was the local contact for Dana's workers' compensation claims. He
echoed Ms. Gooch's testimony regarding Mr. Wilson first notifying Dana of his work
injury in the June 4 letter. Mr. Almand further testified that Dana paid Mr. Wilson
temporary total disability benefits from March through September 20 16, representing
twenty-eight weeks of benefits for a total payment of $17.593.52. Dana argued this
amount represented both the temporary disability benefits to which Mr. Wilson would
have been entitled and an overpayment of temporary disability for benefits paid
subsequent to his attainment of MMI.

       For medical proof, Dana relied on the causation opinions expressed in Dr. Dolan's
deposition and Dr. Chandler's C-32. It argued Dr. Dolan's opinion carries a presumption
of correctness and Mr. Wilson failed to offer any expert medical opinion to rebut Dr.
Dolan's testimony.

                       Findings of Fact and Conclusions of Law

       Mr. Wilson, as the employee in a workers' compensation claim, has the burden of
proof on all essential elements of the claim. Scott v. Integrity Staffing Solutions, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 20 15). At a Compensation Hearing, Mr.
Wilson must establish by a preponderance of the evidence that he is entitled to the
requested benefits. Willis v. All Staff, TN Wrk. Comp. App. Bd. LEXIS 42, at* 18 (Nov.
9, 2015); see also Tenn. Code Ann.§ 50-6-239(c)(6) (2016).

                                    Motion to Dismiss

      Dana moved for involuntary dismissal at the close of Mr. Wilson's proof under
Tennessee Rule of Civil Procedure 41.02(2), which provides:

       After the plaintiff in an action tried by the court without a jury has
       completed the presentation of plaintiffs evidence, the defendant, without

                                             5
       waiving the right to offer evidence in the event the motion is not granted,
       may move for dismissal on the ground that upon the facts and the law the
       plaintiff has shown no right to relief.

Dana argued Mr. Wilson failed to prove medical causation because he did not offer any
expert medical proof of causation and his testimony, alone, as a lay witness, is
insufficient to prove causation. The Court agrees.

        To prove a compensable injury, Mr. Wilson must show that his alleged injury
arose primarily out of and in the course and scope of her employment. Tenn. Code Ann. §
50-6-102(14). To do so, he must show an incident, or specific set of incidents,
identifiable by time and place of occurrence, caused his injury. !d. at§ 50-6-102(14)(A).
Further, he must show, "to a reasonable degree of medical certainty that [the
employment] contributed more than fifty percent (50%) in causing the ... disablement or
need for medical treatment, considering all causes." !d. at§ 50-6-102(14)(C).

       Applying these principles to these facts, the Court cannot find that Mr. Wilson met
this burden. Specifically, Mr. Wilson introduced no medical proof into evidence at the
compensation hearing to establish that his employment activities at Dana contributed
more than fifty percent in causing his carpal tunnel syndrome considering all causes.
Absent any medical opinion regarding the cause of Mr. Wilson's carpal tunnel syndrome,
he cannot show "to a reasonable degree of medical certainty" that his work contributed
more than fifty percent (50%) in causing the . . . disablement or need for medical
treatment, considering all causes."

        The Court recognizes Mr. Wilson disputes Dr. Dolan's and Dr. Chandler's
conclusions; however, Mr. Wilson's disagreement with the physicians' opinions, while
genuine, is legally insufficient to refute their conclusions. Neither Mr. Wilson nor the
Court has the medical qualifications to revise the doctors' medical opinions. As our
Appeals Board observed, "Judges are not well-suited to second guess a medical expert's
treatment, recommendations, and/or diagnoses absent some conflicting medical evidence
or some other countervailing evidence properly admitted into the record." Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8 (Aug. 18,
20 15).

       Accordingly, the Court grants Dana's Motion for Involuntary Dismissal.

                     Request for Repayment ofTemporary Disability

        Finally, given the holding in this case, the Court turns to Dana's argument that it is
entitled to recover from Mr. Wilson temporary disability benefits of $17,593.52. This
amount represented the temporary benefits to which Mr. Wilson would have been entitled
had he proven a compensable claim and Dana's overpayment to Mr. Wilson subsequent

                                              6
to his attainment of MMI. Dana further raised as a defense in the May 3, 2017 DCN that
"Employer is due a credit for overpayment of temporary disability benefits." The Court
notes Dana did not cite any authority supporting its position it is entitled to repayment of
TTD.

      Upon review, the Court finds no authority from the Appeals Board providing
guidance under the 2013 Reform Act for a trial court's consideration of such a request.
Therefore, the Court turns to Tennessee authority on the similar issue of whether an
employee might be compelled to repay a TTD overpayment in the absence of an award of
permanent disability.

       In Frazier v. AFG Indus., No. 03S01-9308-CV-00058, 1994 Tenn. LEXIS 396, at
*6 (Tenn. Workers' Comp. Panel June 14, 1994), the court noted the issue was, at that
time, "apparently [one] of first impression in Tennessee." Looking to other jurisdictions,
the court noted New Mexico had addressed the issue in at least two cases. The panel then
"paraphrased" certain guidelines from those cases to follow in future Tennessee "cases of
this nature." !d. at *8. Namely, when considering whether to order repayment of TID, a
court should consider 1) the culpability of the employee, if any, in accepting the TTD
payments; 2) the negligence, if any, of the employer in making the overpayments; and 3)
both the employee's ability to repay the TTD and the hardship upon him if ordered to do
so. !d. The panel described these factors as "the dimensions of what constitutes
fundamental fairness." !d. at *8-9.

      Importantly, in Frazier, "there was no evidence introduced in the trial court
concerning the reasons for the overpayment, nor was there an examination of any of the
circumstances surrounding the payment of the temporary total disability." !d. at *9. The
panel noted that such examination "should be done before ordering or denying
repayment" ofTTD. !d.

       Here, the Court notes the absence of any testimony at the compensation hearing
regarding the specific breakdown of the amounts and dates of temporary disability
benefits paid. The Court further notes the absence of sufficient testimony at the
compensation hearing concerning the "fundamental fairness" guidelines in Frazier.
Given the lack of this information and the relative novelty of this question under the 2013
Reform Act, the Court reserves ruling on Dana's request and will entertain a post-trial
motion and response on this issue.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Wilson's case against Dana and its workers' compensation carrier is dismissed
      with prejudice against refiling it.

   2. Costs of this cause of $150.00 are assessed against Dana under Tenn. Comp. R.

                                             7
        and Reg. 0800-02-21-.07 (20 16), to be paid within five days of this order
        becoming final.

   3. Dana shall prepare and file a statistical data form within ten business days of the
      date ofthis order under Tennessee Code Annotated section 50-6-244 (2016).


ENTERED this the 27th day of July' / f


                                   - - - 'o~
                                           -'- L. . L. . .L-1-4
                                   JUDGE AMBER E. LUTTRELL
                                                              ~1-1----fr-1~~
                                                                           ~~~~~
                                                                               -
                                   Court of Workers' Compensation Claims


                                       APPENDIX

Stipulations ofF act:

   1.   The alleged date of injury is May 1, 2015.
   2.   Mr. Wilson is thirty-one years of age and resident of Benton County, Tennessee.
   3.   Mr. Wilson has a twelfth-grade education.
   4.   Mr. Wilson received authorized medical care with Dr. Dolan.
   5.   Mr. Wilson's maximum medical improvement date is August 25, 2016.
   6.   The compensation rate is $628.34.
   7.   Mr. Wilson has not returned to work for Dana due to his termination for cause.

Exhibits:

   1. Dr. Dolan's Deposition and Exhibits
   2. Dr. Chandler's C-32
   3. Notice of Medical Records Certification Filing- Dr. Dolan
   4. Wage Statement
   5. The Berry Clinic note dated April 24, 2015
   6. Medical records of Drs. Michael Dolan and Blake Chandler
   7. Dana's Employee Counseling Sessions
   8. Dr. Berry's off work note
   9. Separation Notice
   10.Employee's June 4, 2015 notice letter




                                            8
Technical record: 2
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Expedited Hearing Order Granting Medical Benefits and Denying Temporary
       Disability Benefits
   5. Employee's Motion of Contempt
   6. Employer's Motion to Reconsider
   7. Order Denying Employee's Motion for Contempt and Denying Employer's
       Motion to Reconsider
   8. Employer's Motion to Terminate Temporary Total Disability Benefits
   9. Second Expedited Hearing Order
   10. Initial Hearing Order
   11. Motion for Relief from Initial Hearing Order
   12. Order Denying Employer's Motion for Relief from Initial Hearing Order
   B. Employer's Motion for Summary Judgment
   14. Concise Statement of Undisputed Material Facts in Support of Employer's Motion
       for Summary Judgment
   15.Memorandum ofLaw in Support ofEmployer's Motion for Summary Judgment
   16. Employer's Notice of Filing Exhibits
   17. Amended Scheduling Hearing Order Resetting Compensation Hearing
   18.Employee's Position Statement
   19.Employee's Response to Employer's Concise Statement of Undisputed Material
       Facts
  20. Employee's Notice of Filing Exhibits
  21. Post-Discovery Petition for Benefit Determination
  22. Post-Discovery Dispute Certificate Notice
  23. Order Denying Employer's Motion for Summary Judgment
  24. Employer's Witness and Exhibit List
  25. Employer's Pre-Compensation Hearing Position Statement
  26. Employee's Pre-Compensation Hearing Statement
  27. Employer's Pre-Compensation Hearing Statement of Employer




2
   The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Compensation Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.


                                                      9
                            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 27th
day of July, 2017.


Name                               First         Via    Service sent to:
                                   Class        Email
                                   Mail
Bradley Wilson,                      X           X      935 Chalk Hill Church Rd.
Self-Represented Employee                               Camden, TN 38320
                                                        Bwoldschool65@yahoo.com
Terri Bernal, Esq.,                              X      tbemal@chartwelllaw .com
Employer's Counsel




                                                         Clerk of Court




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