                                                                                               FILED
                                                                                             Apr 01, 2019
                                                                                            12:11 PM(CT)
                                                                                         TENNESSEE COURT OF
                                                                                        WORKERS' COMPENSATION
                                                                                               CLAIMS




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

Keith Quarles,                                      )   Docket No. 2018-08-1077
            Employee,                               )
v.                                                  )   State File No. 39797-2017
FedEx Ground Package System, Inc.,                  )
            Employer.                               )   Judge Deana C. Seymour
                                                    )


                     EXPEDITED HEARING ORDER
________________________________________________________________________

       Mr. Quarles requested medical and temporary disability benefits for injuries to his
right ankle, left knee, and right shoulder. FedEx Ground Packaging System, Inc.
contended the injuries were not work-related. This Court heard the issues at an Expedited
Hearing on March 8, 2019, and finds Mr. Quarles failed to present sufficient evidence
that he would likely prevail at a hearing on the merits in proving his injuries were work-
related. Therefore, the Court denies his request.

                                         History of Claim 1

        Mr. Quarles began working as a package handler for FedEx in February 2015. He
claimed he injured his right ankle, left knee, and right shoulder by repetitively unloading
trucks and scanning boxes at work. 2 Mr. Quarles did not know the cause of his symptoms
at first, so he obtained conservative treatment on his own at Regional One Health.
However, he eventually filed a claim for workers’ compensation benefits with FedEx on

1
  Under docket number 2017-08-1170, this Court previously held an Expedited Hearing on facts nearly
identical to this case. In a May 7, 2018 Expedited Hearing Order Denying Medical and Temporary
Disability Benefits, the Court found Mr. Quarles unlikely to prevail on the merits of his case regarding
causation. Mr. Quarles appealed, and the Workers’ Compensation Appeals Board affirmed. On August
28, 2018, the Court dismissed Mr. Quarles’ claim without prejudice based on his failure to prosecute his
case. Subsequently, Mr. Quarles refiled his claim on September 7, 2018, under the current docket number.
2
  Although Mr. Quarles did not allege a specific work incident, he used November 8, 2016, for the date of
injury.
                                                   1
May 30, 2017.

       FedEx denied Mr. Quarles sustained a work-related injury and argued his
complaints related to pre-existing conditions. It relied on his longstanding history of
right-ankle, left-knee, and right-shoulder complaints. 3 It also pointed to Mr. Quarles’
continued treatment for ongoing symptoms of chronic osteoarthritis and weakness in his
right ankle, left knee, and right shoulder at Christ Community Health Services and
Regional One to show the pre-existing nature of his complaints.

       Following FedEx’s denial, Mr. Quarles obtained a Standard Form Medical Report
(C-32) from Dr. Richard Hillesheim at Regional One. Mr. Quarles relied on this report to
prove the cause of his injuries. Mr. Quarles also introduced an online profile for Dr.
Hillesheim that listed his education and training, professional memberships, and
publications. Additionally, the parties introduced medical records from Regional One that
included records from Dr. Hillesheim. Although Dr. Hillesheim indicated “the
employment activity [was] primarily responsible for the present need for treatment of the
pre-existing [left knee] disease,” he described Mr. Quarles’ left-knee condition as
“degenerative osteoarthritis,” and he stated that the injury did not involve the aggravation
of a pre-existing condition.

       Mr. Quarles filed a Petition for Benefit Determination. He asked for a panel of
physicians and temporary disability benefits.

                          Findings of Fact and Conclusions of Law

                                        Standard Applied

        At an Expedited Hearing, Mr. Quarles must present sufficient evidence that he is
likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2017).

                                            Causation

       The central legal issue is whether Mr. Quarles presented sufficient evidence to
show an aggravation of a pre-existing condition that required medical treatment. The
Court finds that he did not.

       To prevail on causation, Mr. Quarles must establish he suffered an aggravation of
a pre-existing condition that “arose primarily out of and in the course and scope of
employment.” Tenn. Code Ann. § 50-6-102(14)(A) (2018). The Court looks to the
medical evidence to determine whether Mr. Quarles sustained an aggravation of a

3
 Dr. Hillesheim’s C-32 only addressed Mr. Quarles’ knee. Mr. Quarles presented no proof regarding the
causation of his ankle and shoulder complaints.
                                                 2
preexisting condition that arose primarily out of and in the course and scope of
employment. To establish this connection, Mr. Quarles must present expert medical
evidence that the work incident “contributed more than fifty percent” in causing his need
for medical treatment of the preexisting condition, meaning the work accident was more
likely than not the cause, when considering all other potential causes. Tenn. Code Ann. §
50-6-102(14)(C)-(D); Miller v. Lowe’s Home Centers, Inc., 2015 TN Wrk. Comp. App.
Bd. LEXIS 40, at *13 (Oct. 21, 2015). The aggravation need not be permanent for Mr.
Quarles to receive medical benefits. Id. at *18.

        Dr. Hillesheim’s C-32 offers the only suggestion of work-relatedness in evidence
to contradict the fact that Mr. Quarles received years of treatment for left-knee
osteoarthritis before the date he claimed workers’ compensation benefits. Dr. Hillesheim
provided the following opinions on the C-32: (1) there was not a specific incident or
series of incidents identified that brought about the injury; (2) the injury resulted in a
need for treatment; (3) the employment activity, more likely than not, was primarily
responsible for the injury or primarily responsible for the need for treatment; (4) the
injury did not involve the aggravation of a pre-existing injury; and (5) the employment
activity was primarily responsible for the present need for treatment of the pre-existing
disease, condition, or ailment.

       The Court gives little weight to Dr. Hillesheim’s opinions. Although Dr.
Hillesheim indicated “the employment activity [was] primarily responsible for the present
need for treatment of the pre-existing [left knee] disease,” he described Mr. Quarles’ left-
knee condition as “degenerative osteoarthritis,” and he stated that Mr. Quarles’ injury did
not involve the aggravation of a pre-existing condition. Therefore, the Court rejects Dr.
Hillesheim’s opinion on causation and holds Mr. Quarles did not come forward with
sufficient evidence to establish he is likely to prevail at a hearing on the merits that his
knee injury is work related.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Quarles’ claim against FedEx and its workers’ compensation carrier for the
      requested benefits is denied at this time.

   2. This matter is set for a Scheduling Hearing on June 3, 2019, at 8:30 a.m.
      Central Time. You must call 615-532-9550 or toll-free at 866-943-0014 to
      participate in the Hearing. Failure to call may result in a determination of the
      issues without your participation.




                                             3
      ENTERED April 1, 2019.



                                 _____________________________________
                                 JUDGE DEANA C. SEYMOUR
                                 Court of Workers’ Compensation Claims


                                    APPENDIX

Exhibits:
   1. Petition for Benefit Determination
   2. Emails between Mr. Quarles and Bureau’s Assistant Administrator, B. Jeff Francis
   3. Request for Expedited Hearing, with attached Affidavit of Keith Quarles
   4. Mr. Quarles’ personnel file
   5. Mr. Quarles’ wage information
   6. First Report of Work Injury
   7. Medical records from Christ Community Health Services
   8. Medical records from Regional One Health
   9. Form C-32 Standard Medical Report for Industrial Injuries and online curriculum
       vitae of Dr. Richard Hillesheim
   10. Medical Assessment of Ability to do Work-Related Activities, dated December
       19, 2016
   11. Denial letter, dated June 8, 2017

Technical Record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing, with attached Affidavit of Keith Quarles
   4. Employer’s Objection to Request for Expedited Hearing and/or Objection for
       Request for Hearing on the Record
   5. Employee’s Response to Employer’s Objection to Expedited Hearing Request
       with the Decision Based on Evidence on Record
   6. Order Denying Employee’s Request for a Decision on the Record
   7. Employee’s Position Statement, with attachments
   8. Employee’s Summation of New Evidence
   9. Emergency Motion for Brief Continuance of Expedited Hearing
   10. Employee’s Response to Emergency Motion for Brief Continuance
   11. Order on Emergency Motion to Continue Expedited Hearing
   12. Employee’s Amendment to Personal Testimony: Summation of New Evidence for
       Expedited Hearing of March 8, 2019


                                          4
                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on April 1, 2019.

 Name                        Certified Via       Via      Service sent to:
                             Mail      Fax       Email
 Keith Quarles,                 X                  X      255 N. Lauderdale
 Employee                                                 Memphis, TN 38105
                                                          kcq3@netzero.net
 Byron Lindberg,                                    X     blindberg@hallboothsmith.com
 Employer’s Attorney                                      tthompson@hallboothsmith.com



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




                                             5
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements should include: (1) a
      statement summarizing the facts of the case from the evidence admitted during the
      expedited hearing; (2) a statement summarizing the disposition of the case as a result of
      the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
      argument, citing appropriate statutes, case law, or other authority.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667


                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:


10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
