                                                                                          FILED
                                                                                       J anuary 15, 201 5

                                                                                        T:-i CO liRTOF
                                                                                    WORKERS' COMPE:-iSATIO:-i
                                                                                             CLAIM S

                                                                                         Time : 11 :18 .U I

                   COURT OF WORKERS' COMPENSATION CLAIMS
                     DIVISION OF WORKERS' COMPENSATION


EMPLOYEE: VERNA SILAS                                  DOCKET#: 2014-02-0013
                                                       STATE FILE#: 65583-2014
EMPLOYER: BROCK SERVICES                               DATE OF INJURY: 08115/2014

INSURANCE CARRIER: ESIS

                               EXPEDITED HEARING ORDER

        THIS CAUSE came before the undersigned Workers' Compensation Judge on the 121h day of
January, 2015, upon the Request for Expedited Hearing filed by Employee, Vema Silas. Considering
the positions of the parties, the applicable law, and all of the evidence submitted, the Court hereby
finds as follows:

       On December 19,2014, Ms. Silas filed a Request for Expedited Hearing with the Tennessee
Court of Workers' Compensation Claims, Division of Workers' Compensation, pursuant to
Tennessee Code Annotated section 50-6-239 to determine if the provision of medical benefits and
temporary benefits is appropriate.

                                            ANALYSIS

                                               Issue

        Whether Ms. Silas sustained a compensable injury on August 15,2014, and, if so, whether
she is entitled to temporary total disability benefits.

                                       Evidence Submitted

       The following witnesses testified:

   •   Verna Silas
   •   Alysia Silas

                                        Technical Record

       The Court designated the following as the technical record:
    •   Exhibit 1: Petition for Benefit Determination
    •   Exhibit 2: Dispute Certification Notice
    •   Exhibit 3: Request for Expedited Hearing

        The Court did not consider attachments to the above filings unless admitted into evidence
during the Expedited Hearing. The Court considered factual statements in the above filings as
allegations unless established by the evidence.

                                         Parties Exhibits

        The following exhibits were admitted into evidence:

    •   Exhibit 4: Medical Records-Stipulated by Parties
    •   Exhibit 5: Employee's Short-Term Disability Application
    •   Exhibit 6: Wage Statement

                                         History of Claim

         Ms. Silas performed material handling for Brock Services. As a material handler, she lifted
fifty-five (55) pound bags of material and placed them on a pallet. Her job also required moving the
pallet into location and wrapping the pallet when she completed stacking it. On August 15, 2014,
Ms. Silas' back popped when she moved a bag of material. She later told her supervisor, Ralph
Owens, that her back hurt. He asked her why her back hurt, and she told him she did not know for
sure but that it popped when she moved a bag of material. Mr. Owens allowed Ms. Silas to finish
her work day performing light duty work.

        Ms. Silas came to work the next day and her back began to hurt with pain radiating down into
her leg. She again told her supervisor that her back hurt. He allowed her to do light-duty work that
day. Employee did fill out forms for Employer, but she did not go to Employer's in-house medical
clinic because the clinic was closed.

        Ms. Silas came to work on August 181h and went to the on-site medical clinic. The nurse
applied gel to her back, but it did not relieve the pain. Ms. Silas worked light-duty the whole day.
The following day, Ms. Silas met with human resources regarding her back. At the conclusion ofthe
meeting, Ms. Silas understood meeting that she needed to obtain a statement from her doctor
regarding her back.

         Ms. Silas went to Kingsport First Assist on August 20, 2014. Ms. Silas did not have workers'
compensation approval for this visit. Dr. Sonya Marden evaluated her and recommended lumbar
spine x -rays. The radiologist noted degenerative changes to Ms. Silas's lower two lumbar facets and
kidney stones. Dr. Marden instructed Ms. Silas to follow-up with her primary care provider.

       Ms. Silas returned to Brock Services to discuss her doctor visit. Employer representatives
asked her if she wanted to file for short-term disability or workers' compensation. Ms. Silas replied
she wanted to file for workers' compensation, and did so. On August 22, 2014, ESIS, Brock

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Services' workers' compensation carrier, filed a Notice of Denial of Claim for Compensation on the
basis that Employee suffered from a pre-existing condition and had presented no evidence of a work-
related injury.

        Ms. Silas returned to First Assist on August 29, 2014. Dr. Anastasia Brown examined her
that day. The history of present illness indicated Ms. Silas reported low back pain resulting from a
lifting motion. The notes reflect that Ms. Silas' symptoms had resolved and that she requested a
work release. Dr. Brown's assessed low-back pain and released Ms. Silas to full-duty work. Ms.
Silas returned to work.

      Employee filed a Petition for Benefit Determination with this Court on September 22,2014.
Employer at some point provided Ms. Silas a panel of physicians. Ms. Silas chose Dr. Sanjeev
Kakkar, who evaluated her on October 14, 2014.

       Dr. Kakkar obtained Ms. Silas' history and performed a physical exam. He also reviewed her
prior medical records starting in December 2012. He indicated in his review that Ms. Silas had
prior-back pain and kidney stones. Following his exam, Dr. Kakkar opined that Ms. Silas had
lumbar pain due a combination oflumbar facets degeneration, chronic nephrolithiasis, and repetitive
labor over a period of time. He also opined within a reasonable degree of medical certainty that
"Ms. Silas's [sic] back pain was not primarily caused by her employment".

        Ms. Silas continued to seek medical treatment, short-term disability, and workers'
compensation benefits after her visit with Dr. Kakkar. On December 9, 2014, Ms. Silas went to
Associated Orthopaedics of Kingsport, P.C., for unauthorized treatment The providers there (unable
to read signature) diagnosed her with lumbar back pain, recommended light-duty work, and
prescribed physical therapy two (2) to three (3) times a week for four (4) to six (6) weeks. The
provider assigned light -duty restrictions through January 8, 2015. On December 19, 2014, Ms. Silas
completed a short-term disability form. She marked that her request did not arise from a work injury.
She described the injury as "back pain lower pain in back and legs".

       Ms. Silas' original Petition for Benefit Determination requested temporary disability benefits
and medical benefits. She later withdrew the request for medical benefits and requested just three-
and-one half (3 ~) weeks of temporary total disability benefits. The parties did not reach an
agreement about the issue. This matter came before the Court on January 12, 2015.

                                     Employee's Contentions

        Ms. Silas contends she injured her back lifting heavy items at work. She acknowledges she
has a history of back pain and kidney stones, but she asserts a change in the way her back hurts. She
relies on doctors' notes as proofthat she suffered a back injury at work and that she should be paid
for the time she missed work due to her back pain. Ms. Silas does not feel Dr. Kakkar's exam was
adequate to make a determination regarding her back.




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                                       Employer's Contentions

        Brock Services contends that Ms. Silas has failed to prove she suffered a work injury. It
asserts that the medical records indicate Ms. Silas has suffered from chronic back pain and kidney
stones, which are unrelated to a work-injury. It also contends that Dr. Kakkar's opinion is the only
opinion addressing the work-relatedness of her injury, and his opinion proves her injury did not
primarily arise out of and in the course and scope of her employment.

                              Findings of Fact and Conclusions of Law

                                               Standard Applied

        When determining whether to award benefits, the Judge must decide whether the moving
party is likely to succeed on the merits at trial given the information available. See generally,
McCall v. Nat'! Health Care Corp., 100 S.W.3d 209,214 (Tenn. 2003). Ina workers' compensation
action, pursuant to Tennessee Code Annotated section 50-6-239(c)(6), Employee shall bear the
burden of proving each and every element of the claim by a preponderance of the evidence.
Employee must show the injury arose primarily out of and in the course and scope of employment.
Tenn. Code Ann.§ 50-6-102(13).

                                               Factual Findings

       The evidence proves Employee reported a back injury on August 15,2014. Brock Services
provided her a panel of physicians, and she chose Dr. Kakkar as the authorized treating physician.
Dr. Kakkar opined that Ms. Silas had lumbar pain due to a combination oflumbar facts degeneration,
chronic nephrolithiasis, and repetitive labor over a period of time. He also opined within a
reasonable degree of medical certainty that her back pain was not primarily caused by her
employment.

                                          Application of Law to Facts

       The issue in this case is whether Ms. Silas has presented sufficient evidence to prove she
suffered a compensable injury. Tennessee Code Annotated Section 50-6-1 02(13) defines injury as
follows:

          "Injury" or "personal injury" mean an injury by accident, a mental injury,
          occupational disease including diseases of the heart, lung and hypertension, or
          cumulative trauma conditions including hearing loss, carpal tunnel syndrome
          or any other repetitive motion conditions, 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; provided, that:

                        (A)      An injury is "accidental only if the injury is caused
                              by a specific incident, or set of incidents, arising
                              primarily out of and in the course and scope of

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                           employment, and is identifiable by time and place of
                           occurrence, and shall not include the aggravation of a
                           preexisting disease, condition or ailment unless it can
                           be shown to a reasonable degree of medical certainty
                           that the aggravation arose primarily out of and in the
                           course and scope of employment;
                        (B) 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;
                        (C) 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 (50%) in causing
                           death, disablement or need for medical treatment,
                           considering all causes.

        Ms. Silas testified that she injured her back on August 15, 2014. Her testimony was specific
as to the incident that occurred on the day in question. Ms. Silas has the burden to prove her injury
arose primarily out of and in the course and scope of employment. Except in the most obvious,
simple and routine cases, the claimant in a workers' compensation action must establish by expert
medical evidence the causal relationship alluded to above between the claimed injury (and disability)
and the employment activity. Masters v. Industrial Garments Mfg. Co., 595 S.W.2d 811,812 (Tenn.
1980). Ms. Silas did not suffer an obvious, simple injury considering her prior history. Dr. Kakkar
provided a causation opinion and concluded that her work did not primarily cause her injury. As the
panel doctor, his opinion is presumed correct, but it can be rebutted by the preponderance of the
evidence. Tenn. Code Ann.§ 50-6-102(13)(E). The Court finds the remaining medical evidence
does not rebut the presumption given Dr. Kakkar' s opinion as it does not address causation and
points to pre-existing conditions as the cause of Ms. Silas' pain.

      Based upon all the evidence submitted, Employee has failed to prove she suffered a
compensable injury, and therefore her request for temporary total disability benefits is denied at this
time.

IT IS, THEREFORE, ORDERED as follows:

    1. Ms. Silas' claim against Brock Services or its workers' compensation carrier for the
       requested temporary total disability benefits is denied on the grounds of compensability.

   2. This matter is set for Initial Hearing on March 12, 2015, at 3:00p.m. eastern time.

        ENTERED this the 15th day of January 2015.




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                                               BRIAN K. ADDINGTO
                                               Workers' Compensation Judge

Ini tial Hearing:

         An Initial Hearing has been set with Judge Brian K. Addington, Court of Workers
Compensation. You must call 865-594-6538 or toll free at 855-543-5044 to participate in the
Initial Hearing.

        Please Note: You must call in on March 12, 2015. at 3:00p.m. eastern time to participate.
Failure to call in may result in a determination of the issues without your further participation. All
conferences are set using Eastern Time (ET).


Right to Appeal:

   Tennessee Law allows any party who disagrees with this Expedited 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: "Expedited Hearing Notice of Appeal".

    2. File the completed form with the Court Clerk within seven (7) business days of the date the
       Expedited Hearing Order was entered by the Workers' Compensation Judge.

    3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

    4. The parties, 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 ofhaving a transcript
       prepared by a licensed court reporter and filing it with the Court Clerk within ten (10)
       calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the
       parties may file a statement of the evidence within ten (1 0) calendar days of the filing of the
       Expedited Hearing Notice of Appeal. The statement ofthe evidence must be approved by the
       Judge before the record is submitted to the Clerk of the Appeals Board.

    5. If the appellant elects to file a position statement in support of the interlocutory appeal, the
       appealing party shall file such position statement with the Court Clerk within three (3)
       business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues
       presented for review and including any argument in support thereof. If the appellee elects to
       file a response in opposition to the interlocutory appeal, appellee shall do so within three (3)
       business days of the filing of the appellant's position statement.

                                  CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the

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 following recipients by the following methods of service on this the 15th day of January, 2015.


Name                   Certified   First   Via    Fax       Via      Email Address
                       Mail        Class   Fax    Number    Email
                                   Mail
Verna Silas            X           X
E.Lauderback, Esq.                                           X       elauderback@.la wyerfi rm.com




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